APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
J. BOWMAN, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The State appeals from an order discharging the defendant, Joseph E. Cunningham, on a complaint of aggravated battery, pursuant to his motion under the speedy-trial provision of the Illinois Code of Criminal Procedure. In issue is whether defense counsel's silence when the date was set by the court beyond the applicable 160-day term amounts to an agreement and waiver of defendant's right to a speedy trial.
The statute as applicable, in substance, provides that a defendant on bail shall be tried within 160 days from the date he demands trial unless the delay "is occasioned by the defendant"; and any delay so occasioned will "temporarily suspend for the time of the delay the period * * *." Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b), (f).
It is agreed that the defendant is charged with occasioning a 14-day delay by his motion for a continuance prior to his plea, and a 6-day delay when he failed to appear for arraignment. The State has also claimed that a failure to answer the State's discovery motion should also be considered as delay attributable to defendant. However, it appears that the defense would not have had to file discovery until after the period had run, if it is found to have run, and we agree with the trial court's finding that this was not a delay occasioned by the defendant. The trial was not set until well over 200 days from the defendant's arrest. Unless a further delay occasioned by the defendant is shown the defendant was properly discharged.
It appears that the 160-day term would therefore have expired on June 5, 1978. On May 18, 1978, however, the parties were before the court and the following colloquy took place:
"THE COURT: Is there any problem with speedy trial demand?
MR. BART [Ass't State's Attorney]: There is, Judge.
MR. SCOTT [defense counsel]: There is, Judge.
MR. BART: Judge, I think
THE COURT: What's the speedy trial date?
MR. BART: I'm not certain. The Defendant's had a number of continuances in his case.
I think the speedy trial my last calculation was about the 4th or the 5th of the week, about the 5th or so, of July. That was my last calculation. Of course, that week is a non-jury week.
THE COURT: Let's set a trial date within the 160 days so we don't ...