dissenting:
In adopting the State’s position on appeal and reversing the trial court, the majority ignores the principle espoused in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, which is applicable when the State adds charges sometime after proceedings have begun on related offenses. I also believe that the majority’s reliance on People v. De Cola (1959), 15 Ill. 2d 527, 155 N.E.2d 622, and People v. Hickman (1971), 3 Ill. App. 3d 919, 280 N.E.2d 787, is misplaced where, as here, a plea of guilty is vacated by the trial court.
As I see it, the withdrawal of a guilty plea and vacatur of judgment are not rights of a defendant which may be exercised or not at the defendant’s whim. Rather, they are allowed or not at the discretion of the trial court upon consideration of allegations of defects in the guilty plea proceedings. See, e.g., 73 Ill. 2d R. 604(d); People v. Williams (1977), 52 Ill. App. 3d 229, 367 N.E.2d 449.
As such, we are not presented here with a situation wherein the defendant has manipulated delays at will, pleaded guilty to the charges against him, and decided to withdraw his plea, all with the intended result that the statutory period of limitations would run before the State could get the defendant to trial. (Cf. People v. George (1979), 71 Ill. App. 3d 932, 390 N.E.2d 586; Hickman.) Lacking a “novel situation” such as was presented in George and Hickman, I believe that the statutory limitations period applies and requires that the defendant herein be discharged on grounds that the State violated his right to a speedy trial.
With respect to the aggravated battery charge, the question before us on appeal is whether the defendant’s plea of guilty served to waive his right to a speedy trial or merely to toll the time. The majority opinion concludes that the guilty plea “negatives the right to a speedy trial.” In my opinion, the defendant’s plea, which was later vacated, merely tolled the running of the 160-day period during the time that it was in effect.
The precise issue was decided in People v. Bowman (1981), 96 Ill. App. 3d 136, 420 N.E.2d 1132. There, the defendant was incarcerated on July 22, 1978, and made a speedy-trial demand prior to his trial on February 5, 1979. The 120-day rule was, therefore, in effect. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) The defendant had entered a negotiated plea of guilty on November 27, 1978, which remained in effect until January 5, 1979, when it was vacated sua sponte by the trial judge. The defendant was tried on February 5, 1979. The defendant conceded that 66 days of delay were attributable to him but urged that the remaining 132 days were chargeable to the State and that he was, accordingly, entitled to a discharge under the speedy trial statute. On these facts, the appellate court determined that the “plea of guilty operated to toll the running of the 120-day rule during the period that elapsed between the entry of such plea and the order vacating it.” (96 Ill. App. 3d 136, 140, 420 N.E.2d 1132, 1135.) Subtracting out the 66 days which the defendant admitted were occasioned by him and the 39 days during which the guilty plea was in effect, the court concluded that the defendant had been brought to trial on the 93d day of the 120-day period; thus, the State had not violated the defendant’s statutory right to a speedy trial.
Applying the principle of Bowman to the facts before us, I conclude that 123 days of the 160-day period had elapsed prior to the entry of the defendant’s plea: the 60-day period between July 31, 1980, when the speedy-trial demand was made, and September 29, 1980, when a pretrial conference was held and counsel agreed to continue the case; and the 63-day period between December 8, 1980, when the State amended its information, and February 9, 1981, the date set for defendant’s trial. Unlike the majority, I find that the defendant’s acquiescence in the delay between the State’s amendment of the charging instrument and the February 9 trial date did not operate to relieve the State of its continuing burden to bring the defendant to trial promptly on the original charges. It is clear to me that the addition of charges forced the defense to either ask for or acquiesce in a request for a continuance in order to adequately prepare itself on the new charge. See People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840; People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.
Following the defendant’s withdrawal of his guilty plea, as I see it, the 160-day period resumed running against the State and was exhausted on March 22 — 37 days after the guilty plea was vacated. Because the defendant was not brought to trial on or before March 22, he was entitled to dismissal as the trial court correctly ruled.
With respect to the rape charge, I find guidance in the reasoning of the court in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840. In Williams, as here, the State amended its information to charge additional offenses based upon the same set of facts as were the original charges. In Williams, the new charges were added on August 11, 1978 — 120 days after the defendants were taken into custody on April 13, 1978. Although defendants had obtained continuances in connection with the original charges, the court held that such continuances “cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained.” (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846.) In addition, the court ruled that two continuances sought by the defendants — on August 11 to investigate grounds for a motion to strike the additional charges and on August 14, upon denial of this motion, to prepare their defense to the additional charges — were chargeable to the State. The court reasoned:
“The State had the continuing burden to take the necessary steps to bring about a prompt trial in conformance with the provisions of the speedy trial act. (People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110.) The record demonstrates that the State had knowledge of all facts necessary to file the new and additional charges long before August 11, 1978. Only the State’s tardiness (for which the State has never offered an explanation) in filing the new and additional charges precluded commencement of prosecution on these charges within the speedy trial term. To charge defendants with a tolling of the term under these circumstances, especially where the need for time to effectuate discovery was essential, would circumvent the very protection the statute aimed to provide. (Accord, People v. Nunnery (1973), 54 Ill. 2d 372, 297 N.E.2d 129; People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110; of. People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.) We necessarily conclude that the State violated defendant’s statutory right to a speedy trial on the nine new charges.” (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846-47.)
In Williams, as the trial court herein observed, the defendants objected to the State’s addition of charges on the 120th day of the 120-day term for the original charges. In the present case, defense counsel failed to object to the State’s addition of the rape charge on the 130th day of the 160-day period for the original charge. I do not find this distinguishing factor dispositive. The State’s duly to bring about a prompt trial is not diminished by defendant’s failure to object. Nor can it be said that such failure constitutes a waiver by defendant of his statutory right to a speedy trial. (People v. Reimolds (1982), 92 Ill. 2d 101.) In my opinion, Williams squarely addresses the issue before us on the rape charge, and the principles expressed therein control the calculation of days chargeable to the State. Applying Williams to the facts before us, I find that 130 days of the limitation period had elapsed by the date of the addition of the rape charge. In addition, the 63-day period between the date of the amendment and February 9, when the trial was to be held, is chargeable to the State because the defendant was forced to prepare a defense on the new charge. (Williams.) Therefore, for the rape charge, as defendant correctly asserts on appeal, the 160-day limitations period was exhausted before the defendant entered his plea of guilty. I would affirm the order of the trial court.