dissenting.
I am of the opinion that the rule stated in People v. Williams, 403 Ill 429, 86 NE2d 355, should control this case. In that case the defendant was arrested on October 1, 1947, and was tried on March 18, 1948, more than 120 days from the date of his arrest. At page 432 of that opinion the Court said:
“The failure to try him within the statutory period was due to his agreement to an indefinite continuance; hence the statute does not apply.”
Here the defendant was present in open court on February 20, 1969, when his attorney filed a written motion in which it was recited that the case was set for trial on February 24,1969, and in which the prayer was “respectfully request a continuance in the above cause.” He was present when the prosecution announced on that day that the State had no objection to the motion for continuance and the court announced that he would be willing to grant the continuance and that the case was “taken off the trial docket for February 24th.” This constituted the granting of defendant’s motion and as the court found was a general continuance, to an indefinite date; precisely what defendant had requested. Here the indefinite delay was requested by defendant and the fact that the court did not make it to a date certain should not effect defendant’s waiver of the 120-day rule.
Our statute (c 38, § 103-5, Ill Rev Stats) implementing our Constitutional provision for a speedy trial (Art II, Sec 9) is not operative where the delay is occasioned by the defendant. Neither the fundamental right to a continuance to adequately prepare a defense nor the fundamental right to a speedy trial should be depreciated to the status of a tactical move in a procedural game.
With reference to defendant’s waiver of the fundamental right to a speedy trial, defendant has a choice (1) either to have his case continued to a definite date in which event there would be no question of his waiving the right to a speedy trial until that definite date with a new 120-day period starting on that date, or (2) seeking a general continuance for an indefinite time, in which event he should be considered to waive his right to a speedy trial for the same length of time as the trial of the case is continued at his request, i. e., indefinitely. A defendant should not by a motion for a general continuance be allowed to speculate that the administrative problems of a busy court and prosecutor will allow him to both “have his cake and eat it too.”
In my opinion, there is no question whether the waiver of the defendant’s right to a speedy trial (one within 120 days of his being available to authorities) was intentionally relinquished or abandoned. That waiver is by operation of law as spelled out in the statute in the words “unless delay is occasioned by defendant,” so long as due process is not violated and there is no claim of any violation of due process in this case. He, as are all persons, is charged with knowledge of the law; here, that if he occasioned the delay in his trial the right to a speedy trial was suspended, just as he is charged with knowledge that his alleged escape from the penitentiary was a violation of the law. Defendant here makes no contention that he did not understand the effect of his seeking and receiving the continuance he sought and in this factual situation there is no presumption that he was not aware of the 120-day rule, and his constitutional rights, both of which he personally argued to the Court, contending that his 120-day period started at the end of the 30-day period in which motions (other than for a continuance) were to be filed. See People v. Petropoulus, 34 Ill2d 179, 214 NE2d 765.
I am unable to understand the rationale by which the majority reach the conclusion that it was the burden of the People to bring defendant to trial within 120 days of the date from which the case was continued. Illinois cases uniformly hold that it is the People’s burden to bring a defendant to trial within 120 days of the date to which the case was continued where the defendant sought the continuance,1 and the holding in People v. Williams, supra, is that the statute does not apply where the failure to try the defendant within the statutory period was due to his agreement to an indefinite continuance. The fact that our Supreme Court cited People v. Stillman, 391 Ill 227, 62 NE2d 698, a case in which the defendant moved for and received a continuance to the September term which commenced on September 9 and in which it was held that his 120-day period commenced on September 9, in People v. Williams, supra, does not depreciate the latter case to the extent that this Court is not obligated to apply it in this case, in my opinion; this is particularly true in view of the fact that as late as 1967 our Supreme Court in People v. Fosdick, 36 Ill2d 524, 224 NE2d 222, recognized Williams by citing it as authority for the proposition that acquiescence on the part of counsel for defendant “to a new setting at an early date consistent with the business of the court” amounted to a delay occasioned by defendant and that defendant could not evade prosecution by creating the delay. Under such circumstances, the fact that the Citator does not show Williams as authority that a general continuance makes the statute inapplicable, fails to impress.
We are not here dealing with an arbitrary or oppressive delay nor has the State done anything to evade the right of defendant to a speedy trial, nor is any ulterior motive on the part of any official shown. Nor has defendant shown, either below or in this Court, that he was prejudiced by the general continuance which he sought. Even where it is not clear that the right to a speedy trial was denied whether the defendant was or was not in fact prejudiced through delay must be importantly considered. People v. Love, 39 Ill2d 436, 235 NE2d 819, and here the delay was not so prolonged that it must be deemed to have prejudiced the accused, were we to disregard his request for the delay. People v. Love, supra.
I would therefore reverse the order of discharge.
People v. Faulisi, 34 Ill2d 187, 215 NE2d 276; People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687; People v. Bagato, 27 Ill2d 165, 188 NE2d 716; People v. Hayes, 23 Ill2d 527, 179 NE2d 660.