Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Vincent W. Tondryk, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
After a jury verdict which found him guilty of burglary, defendant, Norman Beyah, was sentenced to a term of 4 to 12 years. Prior to trial, defendant had moved for discharge for not having been brought to trial within 120 days of his arrest and commitment on the charge (Ill. Rev. Stat. 1971, ch. 38, par. 103-5). The motion was denied, the appellate court affirmed the judgment of denial (42 Ill. App.3d 962), and this court granted leave to appeal.
Defendant was arrested on July 25, 1972, and later indicted. On September 26, 1972, the defendant was arraigned before the acting presiding justice of the criminal court of Cook County. There a public defender was appointed to represent him. Upon a plea of not guilty, the case was assigned to a trial judge. Neither the report of proceedings nor the common law record reveals a trial date having been set. On the same day, defendant appeared before the trial judge and the court continued the case until the next day. On September 27 (the 64th day of commitment), defendant moved for a reduction in the amount of bail bond previously set. Upon conclusion of his testimony in support of the motion, the State began to introduce evidence of defendant's prior criminal record. The judge interrupted, and the following colloquy occurred.
"THE COURT: I will give you an early date.
MR. GOLDBERG [Assistant State's Attorney]: served time in the House of Correction
THE COURT: Motion for bond reduction denied. Go ahead, pick a date.
MR. GOLDBERG: I have got others.
THE COURT: I haven't got time. Pick a date. We'll give him a trial. I can't talk about bond. If you're innocent, you walk out. If you're guilty, you go to jail.
MR. WALTERS [Public Defender]: Set it down for three weeks from today.
THE COURT: How about October 18?
THE DEFENDANT: Can I get one earlier than that?
THE COURT: I can't give you one earlier than that. Motion Defendant, with subpoenas, October 18."
For various other reasons, none attributable to the defendant, the case was delayed, and on December 14, 1972, the defendant appeared before another judge and moved for a discharge on grounds earlier stated. Defense counsel argued that although the record indicated the setting of a trial date had been on motion of defendant, the date set and any resulting delay had actually been on the court's initiative because defense counsel was ordered to "pick a date." The State argued that defense counsel's response "set it down for three weeks from today [i.e., October 18]," and the defendant's own request for an earlier trial date, constituted either a request for or an acquiescence in the delay of trial. The trial court denied the defendant's motion for discharge, observing that there had, effectively, been a continuance by agreement since both attorneys and the initial trial judge were, on September 27, engaged in another criminal trial. The appellate court essentially agreed with the rationale of the trial court that the continuance was by agreement since the defendant could not have proceeded on September 27 because defendant's counsel was engaged in another trial before the same judge. The appellate court additionally observed that the defendant did not object to the trial court's attributing the continuance to him.
In this court the defendant asserts that he did not waive his right to a speedy trial by failing to object when the trial court, on September 27, attributed a delay to him, and that the effect of the trial and appellate courts' decisions is a technical evasion of his statutory right to a speedy trial. The State renews its argument that the defense, by the above statements, requested, ...