APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The charges for burglary herein were dismissed by the trial court because defendant was not brought to trial within 120 days as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)). The State has appealed.
The State has raised two issues on appeal, arguing first that the 120-day limit had not, in fact, been reached because of delays occasioned by the defendant, and second that the 120-day rule should not apply because defendant's original guilty plea and its subsequent withdrawal was tantamount to a mistrial, thus making the provisions of subsection (e) of section 103-5 applicable.
In view of our opinion herein we do not find it necessary to reach either of the specific issues raised by the State.
We do not find it necessary to go into the mathematical computation as to the delays incurred herein. The State, as we have said, contends that the defendant's plea of guilty and his subsequent withdrawal of the same bars the operation of the 120-day rule.
For all intents and purposes the entry of a guilty plea and the acceptance thereof by the court is the same as an adjudication of guilty by the court or jury. The applicability of the 120-day rule then ceases. In People v. Lybarger (1961), 22 Ill.2d 170, 173, 174 N.E.2d 687, 688-89, the Illinois Supreme Court stated:
"In the recent case of People v. De Cola, 15 Ill.2d 527, we squarely held that when a defendant enters a plea of guilty he waives the right to be discharged for failure to obtain a trial within four months of commitment."
The defendant was incarcerated on May 14, 1977. He entered his plea of guilty on September 27, 1977. The plea was withdrawn on October 31, 1977. The cause was dismissed by the trial court on January 23, 1978, on the basis of the 120-day rule. We find that the court erred.
Section 103-5 of the Code of Criminal Procedure of 1963 was designed "[t]o implement the right to a speedy trial guaranteed by section 9 of article II of the Illinois constitution * * *." (People v. Benson (1960), 19 Ill.2d 50, 53, 166 N.E.2d 80, 82. In the 1970 Constitution this became section 8 of article II.) The Supreme Court of Illinois has frequently stated the above, and in People v. Stuckey (1966), 34 Ill.2d 521, 523, 216 N.E.2d 785, 786, observed in this regard:
"As a practical matter the statute operates to prevent the constitutional issue from arising except in cases involving prolonged delay, or novel issues such as were presented in People v. Moriarity (1965), 33 Ill.2d 606, and People v. Bryarly (1962), 23 Ill.2d 313."
"The right to a speedy trial assumes that there are issues to be tried. A plea of guilty negatives that assumption. If a guilty defendant is permitted to speculate upon the chance that the administrative problems of a busy court may delay his case beyond the fixed statutory period, the fundamental right to a speedy trial is depreciated to the status of a tactical move in a procedural game."
We are thus presented a novel situation which we specifically ruled upon in People v. Hickman (1971), 3 Ill. App.3d 919, 280 N.E.2d 787, aff'd as modified (1974), 56 Ill.2d 175, 306 N.E.2d 32. In that case one of Hickman's co-defendants withdrew his guilty plea and pleaded not guilty on the 119th day after incarceration. We held that:
"where a defendant has plead guilty he waives the 120 day rule and cannot avail himself of it by changing his plea to not guilty a day or two before the expiration of the 120 days." ...