concurring in part and dissenting in part:
While I agree with the majority that the grand jury testimony was material evidence (People v. Wilkes (1971), 2 Ill. App. 3d 626, 276 N.E.2d 761), I am in disagreement with the result reached. In this case, Judge Tucker, based upon factual determinations, concluded that there had been a denial of a speedy trial in the face of a demand for a speedy trial. The record supports Judge Tucker’s order, and my colleagues simply substitute their view of the facts for the view of the factfinder.
Unlike the majority, I would hold that the record in this case shows, as a matter of law, the State’s lack of diligence. The State waited until the 125th day of the 160-day period to check on the progress in transcribing the testimony and made no other effort to obtain the transcript until it had run out of time. The majority refers to “confusion” in the court reporter’s office. The record here shows that in the State’s Attorney’s office, a lawyer not assigned to the case made the only inquiry regarding the transcript. In Griffin, the State’s Attorney’s office requested the transcript each week over a five-month period; the trial judge in that case expressly found that the court reporters’ backlog of work had caused the delay. I do not think that the State has shown here that it acted diligently.
Some comments on one of the State’s arguments are also in order. The State argues that had the continuance not been granted, it might have tried the defendant within the 160-day period; essentially, the State urges that affirming the defendant’s discharge would unfairly punish it for having relied on the extension of time. This problem arises only when, as in this case, the motion for more time comes before the expiration of the speedy-trial period.
Assuming that the extension was granted improperly, the State’s argument presents a court of review with two choices: Accepting the argument in all cases, or accepting the argument in some cases. The logic of the statute and the practices of the courts require that both choices be rejected.
Accepting the argument in all cases in effect would insulate all continuances from review, for the State could always argue that it relied on the extension, however unwisely granted. This would be contrary to both the practice of the courts in reviewing speedy-trial issues and the purpose of the statute. In reviewing continuances the courts always ask whether the trial judge abused his discretion (People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230); this question would be unnecessary and the standard of review irrelevant if the reliance argument, which may always be made, were accepted in every case. The implicit policy of the statute also militates against automatically applying this argument. While a trial judge may allow the State up to 60 days’ additional time to marshal material evidence (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(c)), the statute does not contemplate that continuances should be immune to review. Furthermore, Supreme Court Rule 615(b) (73 Ill. 2d R. 615(b)), pertaining to the powers of reviewing courts in criminal appeals, gives the appellate courts authority to reverse continuances and discharge defendants.
Thus, section 103 — 5(c) cannot be read to foreclose appellate review of the decision to grant the continuance. Also, an underlying policy of the judicial process is that persons are “entitled” to proper and correct decisions. Applying the reliance argument to every continuance granted to the State would therefore set in cement improperly granted continuances, limiting judicial review.
Accepting the reliance argument in some but not all cases would require the reviewing court to establish standards of when reliance has been shown and then either to assess the facts itself or to remand the case for an evidentiary hearing. As a consequence of this procedure, a class of cases would emerge where granting the extension was an abuse of discretion yet discharge is inappropriate.
Judging the State’s reliance would require the appellate or trial court to balance what is fair for the defendant against what is fair for the State. Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, suggests factors relevant in weighing the competing interests. Barker is a pure sixth amendment case, however, for no speedy-trial statute was applicable; the court expressly refused to legislate a time period within which trial must begin but left the States free to establish their own limits. Although speedy-trial statutes are derived from the sixth amendment (People v. Nowak (1970), 45 Ill. 2d 158, 258 N.E.2d 313), they are not limited by it. Beyond the clause permitting the court to grant the State, if diligent, more time to obtain material evidence, section 103 — 5 contains no hint that its time periods are otherwise intended to be flexible or to accommodate delays later deemed improper but rehabilitated, as it were, by the State’s reliance. Illinois cases requiring that interests be balanced pertain to charges dismissed and defendants discharged under provisions other than section 103 — 5. E.g., People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.
The reliance argument is either novel or generally ignored: Cases holding that the trial court abused its discretion in granting continuances before the statutory period do not inquire into the extent and good faith of the State’s reliance on the improvidently granted extension. Even in cases where the State could make a strong and sympathetic claim of reliance the argument goes undiscussed (e.g., People v. Richards (1979), 71 Ill. App. 3d 581, 390 N.E.2d 86); the courts look only for delay attributable to the defendant in deciding whether he is entitled to discharge (People v. Reyah (1977), 67 Ill. 2d 423,367 N.E.2d 1334; People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876; People v. Mrozek (1977), 52 Ill. App. 3d 500, 367 N.E.2d 783).
The case law therefore implicitly rejects balancing interests when the defendant has fulfilled the statutory requirements for discharge; the cases do not require a defendant to show that even a short delay has prejudiced him. The statute in effect irrebuttably presumes that any delay not attributable to the defendant and not justified under section 103 — 5(c) prejudices him. The right to discharge in such a case is absolute. When a speedy trial has been denied, discharge is the only appropriate remedy. (Strunk v. United States (1973), 412 U.S. 434,37 L. Ed. 2d 56,93 S. Ct. 2260.) Thus we should reject the reliance argument in all cases, even when the State presents sympathetic circumstances.
I therefore would affirm the order of Judge Tucker discharging the defendant. The majority opinion seems to agree that the record fails to show diligence yet unnecessarily remands the case to permit the trial judge to enter the same order, albeit for a different reason.