APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, Robert Kemp, was convicted of murder and burglary and sentenced to the penitentiary for concurrent terms of 15 to 20 years and 3 to 9 years respectively. On appeal, defendant contends that he was entitled to discharge from custody because he was not tried within the 120-day time period required under the Four Term Act. Ill. Rev. Stat. 1973, ch. 38, par. 103-5(a), (d).
On March 27, 1972, defendant was arrested and subsequently indicted along with co-indictees Leo Guess, Ernest Davis and Eric Harris, for the offenses of murder and burglary. On November 17, 1972, defendant answered the State's pretrial discovery motions and filed written motions to suppress evidence, to quash his arrest, for severance, and to set bail. Upon the motion of defendant, the court continued the case until November 22, 1972. On November 22, the court set defendant's bail at $10,000 and upon motion of the State continued the case until December 1, 1972. On December 1, 1972, on the court's own motion, the cause was continued with subpoenas, to January 5, 1973.
On January 5, 1973, a hearing was conducted on the motions to suppress of defendants Kemp, Harris and Davis. Those present at the hearing included the three defendants, each represented by his respective counsel, and two assistant state's attorneys. The only evidence presented at the hearing was the testimony of the State's witness, assistant state's attorney George Monaco, who testified to events surrounding statements given by defendants Harris, Kemp and Davis.
At the conclusion of Monaco's testimony, the following colloquy took place between the court, the clerk and Mr. Volpe, defendant Harris's attorney.
"The Court: It's order of Court as to Davis, Kemp and Harris
Mr. Volpe: No, its my motion.
The Court: Order of Court as to Guess, he is not a part of this motion.
The Clerk: Motion defendant as to the other three defendants?
The Court: Yes. Hearing commenced and continued to Monday morning at 9:30."
The hearing continued on January 8 when further testimony was elicited. The hearing was continued by order of court until the next day. On January 9, the motion to suppress hearing concluded and the court heard evidence on the motions for severance and to quash the arrests. The court, by its own order, scheduled the rulings on these motions for January 10, 1973. On that date, the trial judge denied defendant Kemp's pretrial motions except the judge did sever the trial of Kemp from the other three defendants. Defendant Kemp answered ready for trial and by order of court, the cause was set for trial on January 23, 1973. The cause was subsequently continued on three separate occasions on the court's own motion until January 29, 1973, March 13, 1973, and April 26, 1973, respectively. However, on April 6, 1973, defendant filed a motion for a fourth term discharge, which was denied by the trial judge. Defendant was subsequently found guilty of murder and burglary by a jury on January 22, 1975.
The sole issue raised in this appeal is whether the trial court erred in denying defendant Kemp's motion for discharge.
• 1 With respect to offenses committed prior to March 1, 1977, the Four Term Act (Ill. Rev. Stat. 1973, ch. 38, par. ...