APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendants, Wayne Pearson and Stephan Williams, were tried in the circuit court of Cook County on three counts of armed robbery. Following a bench trial, both defendants were found guilty. They appeal their convictions, alleging that the court violated their right to a speedy trial under the "Fourth Term Act" (Ill. Rev. Stat. 1977, ch. 38, par. 103-5), by improperly attributing requests for continuances to the defendants.
At the arraignment, the court appointed the public defender to represent both defendants. Defendant Pearson subsequently retained private counsel. From February 7, 1977, the date of the arraignment, until August 29, 1977, motions for continuances were made and entered either by agreement or attributed by the court to the defendants.
On July 20, 1977, Williams' attorney informed the court that she was not ready for trial and requested a continuance. Williams responded "I don't have no attorney. I am ready for trial." The court nevertheless continued the cause "by agreement" as to Williams.
On August 11, 1977, Pearson's attorney withdrew from the case, and the court continued the cause until August 19, 1977, so that Pearson could obtain other counsel. Williams' attorney agreed to this continuance.
On August 19, 1977, Pearson appeared without counsel and indicated that he intended to obtain the services of an attorney. That same day, Williams' attorney requested a short date for a hearing on a motion. Williams objected to the request, stating "I'm ready for trial. Forget the motion." The court granted a continuance until August 29, 1977, noting that it was "motion defendant" as to Pearson and "by agreement" as to Williams.
A hearing was held on August 29, 1977, at which Pearson was still not represented by counsel. When asked whether he wanted the public defender to represent him, Pearson responded, "No. I'm not ready, no." The court then asked Pearson if he wished to represent himself. Pearson failed to respond to this question. At this same hearing, Williams several times informed the court of his readiness to proceed to trial. When the assistant public defender indicated that he was not ready for trial, Williams stated "you are not my attorney. And I am ready for trial." The court continued the cause until September 14, 1977, and attributed the continuance to both defendants.
On September 14, 1977, both defendants clearly indicated that they wished to represent themselves. The court granted their motions. From this date until the date of trial, all continuances were made by the State. The court convicted both defendants, and the public defender was appointed to represent them at the sentencing hearing. After they were sentenced, oral motions for a new trial and for an arrest of judgment were made on behalf of both defendants. The court denied the motions.
The defendants contend that the trial court erroneously continued the cause over their protests for more than 120 days while they remained in continuous custody, thereby entitling them to be discharged under the so-called "Fourth Term Act" (Ill. Rev. Stat. 1977, ch. 38, par. 103-5). This act requires the State to discharge any defendant who is not brought to trial within 120 days of his arrest unless the defendant occasions the delay.
• 1 We first consider the contention of the State that the defendants waived this issue for purposes of review. This contention is based on section 114-1(a), (b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-1(a), (b)), which states that a motion for discharge under the speedy trial statute must be made prior to trial or it will be considered waived. The statute provides as follows:
"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with Section 103-5 of this Code;
(b) * * * Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, * * * are waived."
The requirements of this statute have been somewhat modified by Illinois case law, which establishes that a motion for discharge based on denial of a speedy trial can be made before conviction or in a post-trial motion. Failure to so raise the issue will constitute a waiver. People v. Taylor (1965), 32 Ill.2d ...