APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of armed robbery following a bench trial. The defendant's post-trial motion to set aside the judgment of conviction prior to sentencing was granted for failure to afford defendant a speedy trial pursuant to section 103-5(a) of the Criminal Code of Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)). The People appeal, contending that the same motion had been denied before trial and should not have been reheard, and further, that a continuance attributable to defendant started the statute running anew under the law then in force. The defendant has cross-appealed contending that the State failed to give notice to the defendant of its request that the adjudication hearing in the juvenile proceedings be delayed (Ill. Rev. Stat. 1975, ch. 37, par. 704-3) and also failed to give notice of the request for a hearing on the State's petition to try the defendant as an adult.
On April 16, 1976, the defendant then 15 years old was arrested for the armed robbery and held pursuant to the State's delinquency petition for a detention hearing. The adjudication hearing was set for April 20, 1976. On April 19, 1976, the People filed a petition to have defendant tried as an adult. Defendant's counsel received a copy of the petition on the morning of April 20 in court and stated to the court:
"Your Honor, I have just received copies of the State's motion and petition this morning, that being that the minor be tried as an adult, and based on that information I would ask that we are given a reasonable period of time in which to prepare for a hearing on this motion.
THE COURT: How Much time do you need to prepare?
MR. WARD: Approximately one week, your Honor. Can we have this matter heard on the 28th?
THE STATE: * * * is it possible to have it one day or the other, because of the Department of Children and Family Services coming on Wednesday? They are very heavy.
THE COURT: Are they heavy that day?
MR. WARD: The 29th would be fine with me.
THE COURT: All right. April 29th at 10:30 for hearing on the motion to be tried as an adult."
In addition, the defendant's counsel moved for discovery which the court ordered to be completed on or before April 23 and thereupon set the entire matter for hearing on April 29.
On April 29 an order was entered granting the People's petition to try defendant as an adult. On August 18, 1976, the defendant filed a motion to dismiss based upon the 120-day rule. This motion was denied by Judge Woodward on August 25, 1976. However, the matter was continued to September 17, 1976 to, permit defendant's counsel to examine the transcript of the April 20 hearing and present it to the court. Upon consideration of the transcript, Judge Woodward on September 17 again denied the motion. The defendant was subsequently convicted of the armed robbery in his bench trial before Judge Locke.
The defendant then moved for "a new trial" *fn1 and in his motion renewed the claim that the 120 days had passed prior to trial. Judge Locke agreed and dismissed the information.
The People argue that defendant could not properly seek a review of the denial of his pretrial motion to dismiss on the basis that he was not given a speedy trial by setting up the same claim in his post-trial ...