Appeal from the Circuit Court of Cook County; the Hon. Arthur
J. Cieslik, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
In a jury trial the defendant, Kenneth Baker, was found guilty of murder and home invasion and was sentenced to terms of 35 years and 25 years respectively, the sentences to run consecutively. On appeal, Baker claims that the trial court erred in denying his petition for discharge based on statutory right to speedy trial filed January 5, 1982. He was arrested February 14, 1981, and his petition alleged that more than 120 days had passed since he indicated that he was ready for trial and that he was entitled to discharge for want of prosecution as provided in section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5). That statute mandates that every person in custody "be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, * * *." The controlling question in determining whether defendant was entitled to discharge under the speedy trial statute is whether the delay of his trial was occasioned by the defendant; if so, he is not entitled to a discharge. (People v. Leonard (1974), 18 Ill. App.3d 527, 310 N.E.2d 15.) Between defendant's arrest and the date of his motion for discharge there were 301 calendar days. During this period there were numerous continuances, some on motion of defendant, some on motion of the State; others were by agreement. The continuances by agreement and upon defendant's motion were, of course, delays chargeable to defendant. When the delay is caused by the defendant, the 120-day period starts anew from the date to which the defendant has caused a delay. People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469.
Application of these principles to this case makes the court proceedings of August 11, 1981, critically important. Defendant contends that "although the Memorandum of Orders indicates that this date was B/A [by agreement] the transcript of the proceedings on that date clearly indicate [sic] that this continuance cannot be attributable to the defendant." The State does not contest defendant's entitlement to a discharge if this statement were true. However, the State asserts that it is not true, and we agree.
The transcript of proceedings for August 11, 1981, shows the following:
"THE COURT: I believe that in this matter most of the discovery has been completed.
[DEFENSE COUNSEL]: We are ready for trial. To be set for trial.
[ASSISTANT STATE'S ATTORNEY]: The answer will be the defendant will —
THE COURT: Affirmative defense for the purpose of the State?
[DEFENSE COUNSEL]: That is correct. Self-defense matter.
THE COURT: This matter will be a bench or jury?
[DEFENSE COUNSEL]: Jury, Judge.
THE COURT: Jury requested. I will give you a longer date because I am tied up. That is a case involving three policemen which can be a month trial. Right after that I got another murder trial. I can give you a tentative date but you will have to check with the State's Attorney to find out what our position is at that particular time. I cannot justifiably say this is an absolute date. Accordingly, I will suggest September 21st, if that is satisfactory, with subpoenas, for purpose of trial.
THE COURT: By agreement. I will ask you prior that you check with the State's Attorney so we ...