APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Cook County sustaining the petition of defendant, Alvin F. Toney, for discharge, based on his contention that he was denied his stautory right to speedy trial. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5.) The State contends that neither defendant's statutory nor constitutional right to speedy trial was violated when he was indicted for the same offenses more than 160 days after having been discharged at the conclusion of a preliminary hearing where the court failed to find probable cause.
We agree with the State's contentions and reverse and remand for further proceedings.
Based on an incident which occurred on July 10, 1973, the defendant was arrested on July 28, 1973, and charged, along with Charles Stanton, with the murder of Charles Murray, Jr., and the aggravated battery of Eliot Cook and Christopher Cook. On October 4, 1973, after several continuances requested by the State, the trial court denied the State any further continuance and a preliminary hearing was held.
At the preliminary hearing police investigator Jerry Lawrence testified that he had interviewed Christopher Cook, one of the victims, regarding the death of Charles Murray and as to his own injuries. At that point in the hearing an objection to further hearsay testimony relating to the interview was sustained on the basis that there had been no showing that the witness would be available to testify at trial.
Thereafter, investigator Lawrence testified that witnesses Eliot and Christopher Cook had never appeared in court in connection with the incident; that when he had attempted to locate the boys, then 14 and 11 years old, he had been informed that they were in Memphis, Tennessee, with their mother; that the father of the boys had confirmed this information; that the father had later called to inform Lawrence that the boys had returned to Chicago and could be found at a certain address; that he had gone to this address but was again unable to locate the boys. The State then rested.
The judge found there was no probable cause shown upon which to base the criminal charges and discharged the defendant. Defendant, immediately thereupon, made a demand for trial.
Approximately 10 months later, on August 7, 1974, the grand jury indicted the defendant for the murder and aggravated batteries for which he previously had been arrested. On August 16, 1974, defendant was arraigned and remained in custody. The defendant filed a petition for discharge on May 27, 1975, contending that he had not been brought to trial on the charges within the 160-day period following his October 4, 1973, demand for trial as required by section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). Between August 16, 1974, and May 27, 1975, the case had been continued 14 times; however, all the continuances but one, made by order of court, were agreed to or otherwise chargeable to the defendant and are not in issue in this case. The defendant's petition for discharge was granted on July 1, 1975, and the State proceeded with this appeal.
• 1 Since it is admitted that the defendant is chargeable with the delay which occurred while he was in custody after his indictment, the sole question we must determine is whether the statutory right to speedy trial has been violated as a result of the defendant not being brought to trial between his discharge on October 4, 1973, his indictment on August 7, 1974. The State contends that the statutory speedy trial provision was not violated by the passage of more than 160 days between the defendant's discharge upon a finding of no probable cause, and his subsequent indictment. We agree.
Under Illinois law (Ill. Rev. Stat. 1973, ch. 38, par. 103-5), a defendant in custody must be brought to trial within 120 days from the date he was taken into custody, or, if on bail, within 160 days from the date he demands trial, unless the defendant is chargeable with the delay. This statutory provision is a means of implementing and explaining the right to speedy trial guaranteed by the State and Federal constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8; see People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819; People v. Green (1976), 42 Ill. App.3d 978, 356 N.E.2d 947.
This court held in People v. Gimza (1977), 56 Ill. App.3d 477, 371 N.E.2d 1135, that the statutory term does not continue to run when charges against the defendant are dismissed for want of probable cause. In Gimza, a charge of involuntary manslaughter against the defendant was dismissed for want of probable cause, after a preliminary hearing. Defendant demanded trial. Later, based on evidence of the same events, defendant was indicted for murder. Defendant's petition for discharge, contending that the 160-day statutory term had expired, was granted. On appeal, we held that, after the charges were dismissed for want of probable cause, the period did not continue to run, but that a totally new period began to run after defendant was indicted and had again demanded trial. Our disposition in Gimza is controlling in the instant case.
Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5), is not operative unless there are charges pending against the defendant. (People v. Lowe (1965), 61 Ill. App.2d 262, 210 N.E.2d 31.) A demand for trial is therefore meaningless when, at the time of the demand, there are no charges pending upon which the defendant can be tried. Here, although defendant was in custody between July 28 and October 4, 1973, the term was broken by his discharge, and the interval between October 4, 1973, and August 7, 1974, cannot be included in determining the statutory period.
The defendant cites People v. King (1972), 8 Ill. App.3d 2, 288 N.E.2d 672, in support of his argument that the statutory term continues to run even though no charges are pending against the defendant. This case is inapposite, however, because it involves a situation where the defendant was in custody and the statutory term was running on related charges. Similarly distinguishable is the case of People v. Williams (1971), 2 Ill. App.3d 993, 278 N.E.2d 408, in which the court held that continuances chargeable to a defendant on a murder charge did ...