APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Janette Flowers, was charged with armed robbery, armed violence, and aggravated battery. *fn1 She was tried without a jury, found guilty of the offenses as charged, and sentenced to serve, concurrently, two 10-year terms and a 4-year term. On appeal defendant asks this court to consider whether the trial court abused its discretion when it granted the State's petition for an extension of time within which to bring defendant to trial, and thus denied her the statutory right to a speedy trial. Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a), (c), (d).
Defendant was arrested on October 15, 1978. Probable cause was found during a preliminary hearing held the next day. On October 30, the court-appointed defense counsel and the cause was continued by agreement. On January 10, 1979, defendant answered ready and demanded trial. The State asked for and was granted a continuance to January 29. On that date, and again on February 15, March 20, and March 26, the State moved for and was given a continuance even though defendant answered ready and demanded trial on each occasion.
On April 16, the 111th day attributable to State delay since defendant's arrest, the State filed its petition for an extension of time within which to bring defendant to trial. The petition averred, inter alia, that Investigator Martin Anderson (Anderson) of the Chicago Police Department was a material and essential witness; that the State has "exercised due exertion to produce the presence of this witness"; and that Anderson "is on furlough, is out of the city and will be until the month of May." Defendant orally opposed the petition and the cause was continued until the next day.
On April 17, defendant filed a written objection which, inter alia, denied that the state's attorney's office had exercised due diligence to produce Anderson for trial at any time. After a hearing, the trial court granted the State's petition.
On May 1, defendant filed a petition for discharge claiming she had not been accorded her right to a speedy trial by April 24, the 120th day of her trial term. In addition, the trial court was informed that Anderson had returned to Chicago on April 8. The trial court denied defendant's petition. Trial began May 16, and defendant was convicted on May 18.
During a hearing on defendant's post-trial motion, Anderson testified that his department scheduled his 28-day furlough almost five months in advance of his March 29 departure from Chicago. Furthermore, he testified that he returned to Chicago on April 8. Nevertheless, the trial court ruled that the State had exercised due diligence in obtaining Anderson's presence for trial and that the extension of time was proper.
Defendant contends her convictions should be reversed and she should be discharged from custody because she was denied her statutory right to a speedy trial. She claims the trial court abused its discretion when it granted the State's petition for an extension of time. We agree.
1 The statutory right to a speedy trial is expressed, in pertinent part, as follows:
"(a) Every person in custody * * * shall be tried by the court * * * within 120 days from the date he was taken into custody * * *.
(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case * * * the court may continue the cause on application * * * for not more than an additional 60 days.
(d) Every person not tried in accordance with subsections (a) * * * and (c) of this Section shall be discharged from custody * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 103-5.)
This statute is a codification of the constitutional protections against arbitrary and oppressive pre-trial delay and incarceration. People v. Shannon (1975), 34 Ill. App.3d 185, 187, 340 N.E.2d 129; see also People v. Hairston (1970), 46 Ill.2d 348, 355, 263 N.E.2d ...