APPEAL from the Circuit Court of Adams County; the Hon. EDWARD
B. DITTMEYER, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 14, 1978.
After being found guilty by a jury in the circuit court of Adams County of the offense of burglary, the defendant was sentenced to a penitentiary term of 6 to 18 years. This appeal followed in which defendant raised four issues: (1) That he was entitled to discharge under the four-term rule; (2) that the prosecutor's cross-examination and closing argument prejudiced him by attempting to impeach him with his prior silence; (3) that the prosecutor's comments on the same subject in closing argument deprived him of a fair trial; and (4) that he is entitled to be sentenced under the Unified Code of Corrections (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005-8-1 et seq.).
In oral argument, counsel for defendant conceded that under the recent supreme court decision in People v. Grant (1978), 71 Ill.2d 551, 377 N.E.2d 4, defendant could not prevail on the sentencing issue. In view of the position which we take on the four-term rule, we need not concern ourselves with issues (2) and (3), and hence they will not be discussed. For the same reason, a detailed recitation of the facts will be omitted, except for matters relating to motions and other proceedings centering around the four-term issue.
Defendant was taken into custody on August 4, 1977, and on August 8, 1977, a one-count information charging him with burglary was filed. A preliminary hearing followed, and on September 21, 1977, defendant was arraigned, pleaded not guilty, whereupon the cause was set for trial on the "November 14, 1977 jury trial calendar."
Various other pleadings, not significant here, were filed from time to time until November 10, 1977, when a motion was filed by the People. Omitting the caption and other formal portions of the document, it reads as follows:
Now come the People of the State of Illinois by Assistant State's Attorney, Dennis W. Gorman, and move the Court for a continuance of the above-entitled cause until the December 1977 jury term or such time as the Court may order on the ground that a material witness, to-wit: Harold Meyers, Jr., is unavailable and the prosecution will be prejudiced by the absence of his testimony, and in support of this Motion, the Affidavit of Dennis W. Gorman is filed herewith."
The affidavit attached to the motion recites in substance that Meyers was a participant in the offense, that he had been in custody and had escaped, that his whereabouts was unknown; it further recited that defendant would not stipulate as to his testimony, that the motion was not made for the purposes of delay, that the absence of the witness was without the procurement or connivance of the People, and that subpoenas for two other material witnesses had not yet been served.
The motion was set down for hearing before Judge Dittmeyer on November 14, 1977. The record reveals only that Judge Dittmeyer recited the facts as to the escape of Meyers, took the motion under advisement, and ordered "that the case remain on the November, 1977, jury calendar and that it will be placed on the calendar as the last case to be tried."
On November 17, 1977, the motion was again called up before Judge Scholz. At that time the Assistant State's Attorney stated that "Harold Meyers is in custody in the Menard State Penitentiary and I talked with him yesterday, and he indicated to me that he would be available in a couple of weeks, was the approximate time period given to me."
Elsewhere in the record there is a suggestion that Meyers was being detained in the psychiatric hospital at Menard Penitentiary, but no such representation was made to Judge Scholz at the November 17 hearing.
The defendant objected to any continuance both at the November 14 and the November 17 hearings. No evidence was taken at either hearing, only arguments of counsel. At the conclusion of the November 17 hearing Judge Scholz said, "* * * but I think this is a reasonable request. The motion for continuance to the December calendar is granted."
Neither the State's Attorney nor defense counsel advised either Judge Dittmeyer or Judge Scholz at either the November 14 or the November 17 hearings that there might be any problem under the four-term statute (Ill. Rev. Stat. 1977, ch. 38, par. 103-5). This matter was first raised when defendant ...