concurring in part and dissenting in part.
I believe the defendant was entitled to discharge because of the failure of the People to bring the defendant to trial within the 120-day period required by section 103 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5(a)). Consequently, I believe the trial court erred in denying the defendant’s petition for discharge. I respectfully disagree with the contrary holding of the majority of the court, but I concur in the further result reached by the majority remanding this case for a new trial because of trial errors.
It is undisputed the defendant was not brought to trial within the 120 days required by statute and the only issue with respect to this aspect of the case is whether the delay was occasioned by the conduct of the defendant. As suggested by the majority of the court, whether any delay occurred depends on what effect is given to the motion which in form requested the substitution of judge.
I believe there was no delay attributable to the conduct of the defendant for two general reasons. First, the motion in question was not a motion for the substitution of a judge and second, whatever the motion did seek did not delay the trial.
The chronology of events specifically found by the trial court in its written order denying the discharge petition is of particular significance. Defendant was arrested on July 25,1974. He filed the questioned motion on September 30,1974, prior to his preliminary hearing. The prefiminary hearing was commenced oil September 30, 1974, and concluded on October 4, 1974. On October 7, 1974, the defendant was indicted by the grand jury and on November 12, 1974, he was arraigned. The relief requested in the substitution motion was apparently formalized by an order on October 17,1974. Although not mentioned in the order denying discharge, it appears the case was assigned by Judge Roberts for trial on October 25, 1974.
From the foregoing chronology, as well as from the briefs of the parties, it is undisputed that the motion in question was filed prior to preliminary hearing, prior to indictment, prior to arraignment and prior to assignment for trial.
The chronology of events also brings into focus the nature of the motion itself. The motion, in form, sought the substitution of a judge, but the substance of the motion was a request or a reminder that in accordance with local circuit court rules, the case should be assigned for trial to a judge other than the one who would have had customarily heard the case on its merits. According to local circuit court rules, a case should not be heard on its merits by a judge who participated in any of the preliminary proceedings. According to the motion, for some reason or other, the judge who would have ordinarily heard the case on its merits conducted the hearing at which defendant’s bond was set and according to the circuit court rules, this judge should not then have heard the case on its merits. The existence of the circuit court rule and the underlying facts which form the basis of the motion are not disputed by the People on this appeal. Nevertheless, the People argue that so long as the defendant requested the substitution of a judge, delay occurred as a matter of law attributable to the conduct of the defendant. It seems to me that it is the substance of the motion and not its form which determines its effect and legal significance. If from the substance of the motion it appears that no substitution of judges was requested, then such substance should be given effect. That this was the substance of the motion is clear both from the undisputed facts, and the nature and chronology of events. At least in the usual sense of legal proceedings, I am unable to understand how there can be a substitution of judges for trial prior to preliminary hearing, indictment or arraignment. Likewise, I fail to see how there can be a substitution of judges until there has been an initial or original assignment of a judge for whom substitution is sought.
Even if the motion is regarded as seeking some affirmative action, again the chronology of events demonstrates that defendant’s conduct did not cause any delay. It did not cause any interference with the administrative process of assigning the case for trial and neither the trial court nor the majority of this court point to any evidence to the contrary.
The trial court specifically found that no actual delay was caused by the defendant’s motion, but on the authority of People v. Zuniga, 53 Ill. 2d 550, 293 N.E.2d 595, and People v. Spicuzza, 57 Ill. 2d 152, 311 N.E.2d 112, it felt obliged to hold that the motion per se caused delay. The majority of the court likewise rely on the two foregoing cases. However, as I have indicated earlier, the motion in this case was not an intrusion into or an interference with the administrative procedure of assigning cases to judges for trial and hence the rules announced in those cases are not controlling on the result reached in this case. On the contrary, the motion is more analogous to a discovery motion or a motion to set or reduce bail. However, of crucial significance is the fact that this motion was filed and heard before defendant was indicted or arraigned, both of such steps being conditions precedent to the commencement of any administrative procedure setting the case for trial. Under these circumstances I believe the defendant’s trial commenced too late to avoid the consequences of the statute.
As indicated in the initial paragraph of this opinion, I do agree with the majority’s holding that a new trial is required on account of trial errors. In addition to my concurrence with the reasons for this result, namely those related to the limitation of further examination of the witnesses, I also believe that the improper remarks of counsel during final arguments likewise support this result and I believe that either the objections to these remarks were properly preserved or the errors should be regarded as plain errors.