Appeal from the Circuit Court of Fulton County; the Hon.
Kenneth L. Bath, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Jones, was charged in two counts with having committed unlawful deliveries of a controlled substance (LSD). A warrant for his arrest was issued pursuant to section 111-2(d) of the Criminal Code of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 111-2(d)), and on April 16, 1985, defendant appeared in the circuit court of Fulton County in the custody of the sheriff. The charges were read to defendant. He was found to be indigent and was remanded to the sheriff's custody upon failure to post bond, which previously had been set at $5,000. The public defender was appointed to represent defendant.
The case proceeded to a preliminary hearing on April 24, 1985. The court found probable cause to believe that defendant had committed an offense, defendant was arraigned and entered a plea of not guilty. Upon denial of defendant's motion for release on his own recognizance, he was again remanded to the custody of the sheriff. On April 26, 1985, defendant filed a request for an immediate jury trial. By an order entered May 29, 1985, defendant's cases were assigned to Judge Wilhelm for a jury trial to commence on June 18, 1985. A pretrial conference was set by the same order for June 10, 1985.
On that date, neither defendant nor the public defender, John Clark, appeared. Assistant State's Attorney, Dean Wilson, informed the court that Clark had told him that defendant would be pleading guilty to the offenses. Accordingly, by order entered on June 17, 1985, defendant's cases were set for rearraignment to be held before Judge Wilhelm on July 3, 1985.
On July 3, 1985, Assistant State's Attorney Dwight Campbell and Public Defender John Clark appeared in court and informed Judge Wilhelm that he might wish to disassociate himself from the defendant's cases because the judge's son, Tom, might be a material witness. Judge Wilhelm immediately recused himself and referred the matter to the office of the chief judge of the circuit in Macomb, in McDonough County. On July 23, 1985, Campbell received notice that defendant's cases had been reassigned to Judge Murphy, who was in Macomb at that time. Between July 23 and August 15, Campbell made several unsuccessful attempts to have Judge Murphy set defendant's cases for rearraignment.
Finally, on August 16, defendant, along with Public Defender Clark and Assistant State's Attorney Campbell, appeared before Judge Murphy at the Fulton County courthouse on the State's motion for rearraignment. Defense counsel moved for dismissal of the charges against defendant for violation of his right to a speedy trial. The State's Attorney filed a "Motion for Change of Judge." The matter was taken under advisement. On August 20, attorney Edward Danner entered his appearance for defendant.
On August 21, Public Defender Clark withdrew as counsel for defendant. The State's motion for change of judge was granted. Defendant's motion to dismiss was heard by Judge Kenneth Bath later that day, and at the conclusion of testimony and arguments of counsel the court took the matter under advisement.
On August 22, Judge Bath granted defendant's motion to dismiss and discharged him. The court's findings of fact and law follow:
"(1) That the defendant was continuously in custody from April 16, 1985 to August 16, 1985; the date of the filing of defendant's Motion to Dismiss.
(2) That 122 days elapsed from April 16, 1985 to August 16, 1985.
(3) That the defendant did not occasion any delay in these causes.
(4) That neither the defendant, nor his counsel are guilty of deliberate deception in these causes.
(5) That the defendant's right to Speedy Trial as contemplated by Chapter 38, sec. 103-5 has been violated."
The State takes this appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)). Factually, the State takes issue with the trial court's finding that defendant did not occasion any delay. The State further contends that the trial judge erred by not exercising its discretion in determining whether defendant was entitled to dismissal of the charges upon its finding that 122 days ...