APPEAL from the Circuit Court of Cook County; the Hon.
ALBERT S. PORTER, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE SIMON delivered the opinion of the court:
Fred Bedford was found guilty in a bench trial of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2) and sentenced to a term of 4 to 7 years. He contends in this appeal that his motions for discharge under the speedy trial act (Ill. Rev. Stat. 1975, ch. 38, par. 103-5) were improperly denied. He also contends that his sentence was improper, since he was neither advised of nor permitted to exercise his right to elect between sentencing under the statute in effect at the time of the offense and under the statute in effect at the time of sentencing.
Defendant was arrested on March 28, 1974, and, commencing the next day, remained in custody continuously. On August 5, 1974, through his private counsel, he filed a motion for discharge under section 103-5 of the Code of Criminal Procedure, claiming that he had been in custody since March 29, 1974; that he was responsible for no delays in bringing his case to trial; and that more than 120 days had elapsed while he was held in custody without his having been brought to trial. The motion was presented on the day it was filed to a different judge than the one who presided at later stages of these proceedings and at defendant's trial.
Defense counsel argued that the "half sheets" showed defendant was not responsible for the delays from the date of his arrest to the filing of the motion for discharge. The State argued that the trial was delayed by reassignment of the case to a different courtroom on April 16, 1974 (and as it later developed, also on April 18, 1974); that the "half sheets" did not disclose who was responsible for these reassignments; that the State's file indicated the reassignment of April 16 was occasioned by defendant; that only the transcript of proceedings for that date could settle the question, since the transcript takes precedence over the "half sheets" and, in any event, the "half sheets" were ambiguous; that it was defendant's burden to show he had not caused the delay which he argued entitled him to acquittal; and that if the defense wished a continuance to obtain the transcript, such a request would constitute a delay in the trial and break the 120-day term which had recommenced in April and was due to expire on August 13, 1974.
On August 5, 1974, when the motion to discharge was presented, the State informed the court and the defendant it was ready for trial. Defense counsel requested a continuance to August 9, 1974, which was granted, to enable him to get the April 16 transcript and stated, "I am willing to break the term as of today in order to decide the question of the term being up today." And, on the record, defendant stated he understood and approved of what his attorney was doing.
The sequence of events which followed the August 5, 1974, continuance was:
August 9, 1974: Defense counsel represented that the transcript was still unavailable, and requested another continuance, which was granted, until August 16, 1974. Defense counsel expressly advised the court that the continuance was on defendant's motion rather than by agreement.
August 16, 1974: The matter came on for hearing before Judge Albert S. Porter, who presided at all further proceedings in this case, and defendant requested a continuance of 1 week because the transcript was not ready. The case was continued until August 23, 1974.
August 23, 1974: Although the April 16 transcript was not yet available, the court heard evidence on the motion for discharge. That evidence consisted of defendant's testimony that he had been incarcerated in the county jail since March 29, 1974, neither he nor his counsel had requested any continuances, the case was transferred to a different branch of the court on April 16, 1974, because defendant indicated he wished to plead guilty, and on April 18, 1974, the defendant changed his mind and decided not to plead guilty. The State then requested a continuance until the transcript could be made available, and the matter was continued until September 3, 1974, on the State's motion.
September 3, 1974: On motion of the State, the matter was continued until September 9, 1974, and on that date it was continued until September 10, 1974, on the court's motion.
On September 10, 1974, the transcripts of proceedings for April 16, 1974, and for April 18, 1974, were available. They disclosed that on April 16 defendant had indicated a desire to enter a guilty plea. The case then was reassigned for April 18, 1974, to a judge authorized to accept a plea of guilty in a felony case, but when defendant appeared 2 days later before the new judge, defendant stated he had changed his mind and wished to continue in his plea of not guilty. That judge then announced that the case would be assigned to the preliminary hearing court for April 19, 1974, but defense counsel requested that it be reset for April 26, 1974, and the court continued the matter to that date.
After reviewing this entire sequence of events, Judge Porter denied the August 5 motion for discharge on the ground that defendant had occasioned delay on April 18, 1974, which broke the 120-day term and extended the new term beyond August 5, 1974. At that point in the September 10 hearing, defendant presented a second motion for discharge, claiming he had been denied his right to a speedy trial, since the record demonstrated that he had caused no delay in the trial between the April 26 date and September 10, and that more than 120 days had run between those dates. Judge Porter denied this motion for discharge, ruling that defendant was responsible for delays on August 5, August 9 and August 16 when he requested continuances to obtain a transcript to support his August 5 motion for discharge, and that the 120-day term commenced to run from August 26, 1974, the date to which defendant requested and was granted his last continuance.
Defendant argues on this appeal, as he did at the September 10 hearing, that a motion for discharge does not cause a delay in the trial of a case and, therefore, his August 5 motion for discharge did not break the running of the 120-day term. Defendant also argues that the delay involved in obtaining the transcripts of the April 16 and April 18 hearings was attributable to the State, and not to the defendant, since defendant demonstrated by the "half sheets" that he caused no delay during the period in question, while the ...