Appeal from the Circuit Court of St. Clair County; the Hon.
Patrick J. Fleming, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 24, 1985.
The State appeals from a judgment of the circuit court of St. Clair County dismissing a robbery charge against Paul Williams, defendant, due to the State's failure to bring defendant to trial within the 120 days allotted by section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5). For the reasons which follow, we affirm the judgment of the circuit court.
• 1 In order to obtain a discharge for the State's failure to try him within 120 days, defendant must show he was incarcerated, gave no bail, was not tried within 120 days, and was not accountable for any delay. (People v. Grant (1982), 104 Ill. App.3d 183, 188, 432 N.E.2d 1129.) The decision as to whether a delay was occasioned by the defendant rests with the trial court, and that decision should be sustained on appeal absent a showing that it constitutes an abuse of discretion. (104 Ill. App.3d 183, 189.) Here, the court determined the delay attributable to the State accrued during two periods: from December 21, 1982, the day after defendant was taken into custody, until March 23, 1983, when the court ordered an examination to determine defendant's fitness to stand trial and sanity at the time of the offense, and from November 3, 1983, the date defendant was found fit to stand trial, until December 5, 1983, the date defendant filed his motion for discharge. The trial court's determination that these times were chargeable to the State is fully supported by the evidence, and we find no basis upon which to disturb the court's conclusion that the 120-day period had run.
• 2 In an additional argument, the State contends that violation of the statutory right to a speedy trial does not mandate dismissal of the charges. It is the position of the State that the provision of the statute directing that defendant be "discharged" upon its violation (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(d)) does not mean that the charges against defendant must be dismissed, but, rather, means only that defendant must be released from custody or from the obligations of bail. While the State concedes that authority to dismiss the charges for failure of the State to comply with the speedy-trial statute is found in section 114-1(a)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 114-1(a)(1)), it argues that this statute, which utilizes permissive language ("the court may dismiss the indictment, information or complaint"), allows the trial court to decide, in its discretion, whether the charges should be dismissed.
While our analysis of the language of the statutes involved persuades us that this argument is not without some merit, it is axiomatic that this court is obligated to follow the decisions of the Illinois Supreme Court (Corbett v. Devon Bank (1973), 12 Ill. App.3d 559, 567, 299 N.E.2d 521). In People v. Richards (1980), 81 Ill.2d 454, 459, 410 N.E.2d 833, the supreme court stated unequivocally that, "if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to a dismissal of the charges." While Richards did not address the issue of statutory construction presented here, and while at least one of the cases relied on in Richards involved an earlier statute containing different language than the current one (People v. Wyatt (1962), 24 Ill.2d 151, 152, 180 N.E.2d 478 (involving Ill. Rev. Stat. 1959, ch. 38, par. 748, which provided a defendant "shall be set at liberty by the court" if not tried within four months)), we are not at liberty to disturb the clear pronouncement of the supreme court in Richards.
• 3 Finally, the State contends that defendant's fitness hearing tolled rather than suspended the speedy-trial term, and that the 120 days thus commenced to run anew after defendant was found fit to stand trial. This argument was not made in the trial court, and is waived for purposes of review. People v. Herndon (1982), 105 Ill. App.3d 167, 170, 434 N.E.2d 10.
For the reasons given, the judgment is affirmed.
JUSTICE WELCH, dissenting:
I would reach the issue of whether defendant's fitness hearing tolled rather than suspended the speedy-trial terms despite the State's failure to raise the issue at trial; further, I would reverse the judgment of the circuit court on that basis. Therefore I respectfully dissent.
Some additional fact background is helpful:
Williams was initially charged by complaint with (1) a December 20, 1982, attempted rape, and (2) a December 20, 1982, robbery in which he allegedly removed one 1983 Chevrolet Monte Carlo and $7 from the owner thereof by threatening the imminent use of force. A St. Clair County grand jury indicted Williams upon the latter charge and returned "No True Bill" as to the former. On March 22, ...