APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, William D. Parker, was indicted for bribery and official misconduct. He was subsequently re-indicted for theft, bribery, and official misconduct based upon the same facts. The trial court granted defendant's motion to dismiss both indictments on the grounds that defendant was not brought to trial within the period prescribed by statute. The State appeals from that dismissal.
We affirm the dismissal by the trial court.
Defendant was arrested on August 14, 1973, for allegedly soliciting and accepting $500 from a Chicago police officer. The money was taken in exchange for obtaining a position as a Cook County sheriff's deputy for the officer. Defendant was released on bond the same day.
An indictment was returned in March 1974 charging defendant with bribery and official misconduct. He was arraigned March 12, 1974, and plead not guilty. On April 21, 1975, defendant made a demand for trial. The State requested a continuance to May 23, 1975. Two more motions for continuances were subsequently made by the State, to July 9, 1975, and to August 8, 1975. On both dates, the defense demanded trial.
On August 8, 1975, defense counsel was not present in the morning when the case was called, and the matter was passed over until the afternoon. When the case was again called, assistant state's attorney Kayman informed the court that he had spoken with defense counsel, Patrick Tuite, and had agreed to a new trial date, August 15, 1975. The common law record indicates that this continuance was "by agreement." On August 15, 1975, the State again moved for a continuance, as it did on September 12, 1975, October 3, 1975, and October 31, 1975. On each date, the defense demanded trial.
On October 27, 1975, defendant was re-indicted for theft, bribery, and official misconduct. These charges arose from the same facts which were the basis for the first indictment.
In December 1975, defendant filed motions to dismiss both indictments on the ground that he was not brought to trial within 160 days after his demand for trial. His position was that he did not cause the delay which occurred on August 8, 1975.
A hearing on the motions to dismiss was held on January 5, 1976. Assistant state's attorney Kayman testified that on Friday, August 8, 1975, he telephoned defense counsel Tuite after the morning call, informed him that there was a jury trial proceeding in the courtroom and that the State would be ready to proceed on August 15, 1975. Kayman was then asked what defense counsel's response was to the suggestion of a continuance and the proposed date:
"Q. What, if anything, did Mr. Tuite say in response to your conversation with him?
A. I asked Mr. Tuite if he would agree to a date, and the date would have been a week from that Friday. He said he would agree to that date. I said would that be by agreement.
Q. What, if anything did Mr. Tuite say?
A. Mr. Tuite said it would be and Mr. Tuite said he did have other matters to contend with that afternoon, so I told him that we would get the by-agreement date and that he would not have to appear here."
On cross-examination, Kayman stated that a jury trial had been going on for the entire week of August 8, 1975 and had ...