dissenting:
In the instant case, defense counsel filed a motion to remove the defendant’s case from the jury list and to continue the matter. The basis of counsel’s motion was the fact that he had been assigned to the defendant’s case on November 1, 1987, and that he had an insufficient amount of time to adequately prepare the defense for trial, which was scheduled for November 23, 1987. In addition, defense counsel stipulated that the delay occasioned by the continuance was specifically attributable to the defendant. Contrary to the majority holding, I find that a motion submitted by the defendant’s own attorney for a continuance is a delay occasioned by the defendant and consequently tolls the 120-day speedy trial period provided under section 103 — 5(a) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)).
Section 103 — 5(a) provides in pertinent part:
“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a).)
It is well settled that the statutory speedy trial term is tolled where a defendant requests, stipulates to, or consents to a continuance. (People v. Tillman (1963), 26 Ill. 2d 552, 554; People v. Brown (1982), 110 Ill. App. 3d 443.) The record establishes that the defendant was arrested on August 6, 1987, and charged with the offense of residential burglary. On November 18, 1987, the defendant’s counsel requested and obtained a continuance order. Thus, if the statutory period had been tolled on November 18, 1987, there would have been 16 days remaining in the 120-day term. The majority finds, however, that because the defendant did not voluntarily acquiesce in his counsel’s request for a continuance, the delay was not occasioned by the defendant, and the 120-day period was not tolled. I cannot agree with the majority’s interpretation of section 103 — 5(a).
Continuances which are requested by the State are charged to the State. (People v. Rhoads (1982), 110 Ill. App. 3d 1107.) Likewise, continuances which are requested by the defendant are charged to the defendant. (People v. Gathings (1984), 128 Ill. App. 3d 475.) Courts should not be forced to inquire into every chargeable delay to determine whether a defendant personally agreed to a continuance or was wholly blameless for asking for a continuance. Such a rule would allow defendants to divert the blame for delays caused by their own motions. For example, a defendant may move for a continuance in order to receive more time to complete discovery. If the continuance is granted, the defendant might resourcefully argue that the reason he needed more time for discovery was because the State had not been forthcoming and expedient in furnishing him information. Thus, the defendant could argue that since he was not to blame for the circumstances necessitating the continuance motion, the motion should not be charged to him. Then, when the 120-day speedy trial period expires, the defendant will move to dismiss the case, since the delay was not occasioned by him. To avoid this pitfall, this court should adhere to the principle that parties should be charged for motions that they request.
Furthermore, the majority’s ruling attempts to separate the affirmative acts taken by defense counsel from the defendant’s own acts. This runs counter to well-established case law. It is clear that when defense counsel fails to appear in court at the appointed time, his absence causes a delay attributable to the defendant. (People v. Hairston (1970), 46 Ill. 2d 348, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) It does not matter whether the defendant personally acquiesced to his counsel’s decision not to appear in court at the appointed time. Likewise, in the present case, it should not matter whether the defendant personally agreed to the continuance. Actions taken by defense counsel should be charged to the defendant.
Finally, the defendant in this case is presented with a no-lose situation. Certainly, if the defendant’s counsel had not moved for a continuance and had gone to trial unprepared, the defendant on appeal would be arguing that trial counsel rendered ineffective assistance of counsel. Yet, since his counsel chose to request a continuance, the defendant now attempts to assert a technical violation of the 120-day speedy trial period. This court should not allow the defendant to have it both ways. For the reasons stated, the continuance motion should be charged to the defendant and the statutory 120-day period should have been tolled. Accordingly, I dissent.