dissenting:
I disagree with the majority’s decision reversing the trial court’s order dismissing defendant Reimold’s armed robbery charge and remanding this cause for a hearing to determine whether any pretrial delay was attributable to the defendant.
The majority writes: “The record does not show any affirmative act by defendant which contributed to the actual delay of the trial. Nor does the record show any motion for continuance by the defendant or any express agreement to a continuance granted on motion of either the State or the court.” (People v. Reimolds (1981), 100 Ill. App. 3d 598, 601.) With this observation I concur. However, I do not believe the record’s silence as to whom the pretrial delays in this case are attributable warrants a remandment for an evidentiary hearing on this subject. On a motion to dismiss criminal charges in the trial court due to a violation of the 160-day speedy-trial rule (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)), the burden is upon defendant to show that he is not responsible for any pretrial delay. (People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876; People v. Wilkins (1979), 77 Ill. App. 3d 179, 395 N.E.2d 1036.) According to the trial court, the defendant met this burden. In addition, where the record is silent a presumption arises that the delay is not attributable to the defendant (People v. Yates (1974), 17 Ill. App. 3d 765, 308 N.E.2d 679; see People v. Cichanski (1980), 81 Ill. App. 3d 619, 401 N.E.2d 1315). A complete reading of the motion to dismiss indicates the State was given every opportunity to rebut this presumption at the hearing on defendant’s motion to dismiss the charges, but failed to do so. In fact, the State’s only argument of note at that hearing, which was presented at the completion of the State’s argument, was that an additional evidentiary hearing should be held to determine what was in the mind of the judge that heard the earlier aspects of the case. I do not see the justification in presenting the State with yet another opportunity to refute defendant’s contentions. Put succinctly, the State had its chance to present such evidence. It received adequate notice of the hearing and was given sufficient time to respond to defendant’s allegations. A ruling in the State’s favor opens the door to unnecessary hearings, wastes judicial talent and the time and effort of judicial system personnel, and adds further costs, in this case as well as future cases.
On the basis of the record before us, I cannot find that the trial court abused its discretion in finding no pretrial delay attributable to defendant Reimolds (People v. Arch (1975), 33 Ill. App. 3d 331, 337 N.E.2d 221). Therefore, I would affirm.