¶1dissenting:
¶2I respectfully disagree with the majority’s position that defendant’s trial objections alone preserved for review his statutorily based speedy trial claim. The majority begins its opinion by framing the issue: “The only issue in this case is whether the defendant’s statutory right to a speedy trial was violated when the trial court granted the State a 30-day extension of the 120-day trial term.” (Emphasis added.) 384 Ill. App. 3d at 795. The majority then distinguishes between the constitutional and statutory right to a speedy trial and concludes that “defendant’s speedy trial claim is statutory, not constitutional.” 384 Ill. App. 3d at 798. But then, without explanation, the majority holds that defendant’s speedy trial claim is constitutional for purposes of avoiding the waiver rule announced in People v. Enoch, 122 Ill. 2d 176, 190, 522 N.E.2d 1124 (1988).
¶3Our supreme court there held that “when the defendant fails to comply with the statutory requirement to file a post-trial motion, [the court’s] review will be limited to constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction hearing petition.” (Emphasis added.) Enoch, 122 Ill. 2d at 190. The majority maintains that defendant’s claim, although grounded in statute, has constitutional underpinnings and, for this reason, raises a constitutional issue not subject to waiver. 384 Ill. App. 3d at 799. The majority cites People v. Battles, 311 Ill. App. 3d 991, 997, 724 N.E.2d 997 (2000), which in turn cites People v. Reimolds, 92 Ill. 2d 101, 106, 440 N.E.2d 872 (1982). Those cases acknowledge that the speedy trial statute implements a constitutional right and, as such, should be liberally construed in favor of the defendant. Battles, 311 Ill. App. 3d at 997; Reimolds, 92 Ill. 2d at 106. They do not speak to whether an accused waives his right to raise a statutorily based speedy trial claim on direct appeal by failing to first raise the issue in a posttrial motion. But there are cases that do.
¶4“[I]t was long ago established that the right to discharge granted by the [speedy trial] statute was waived if not asserted by the defendant prior to conviction” (People v. Pearson, 88 Ill. 2d 210, 216, 430 N.E.2d 990 (1981)), or through a posttrial motion (People v. Alcazar, 173 Ill. App. 3d 344, 354, 527 N.E.2d 325 (1988); People v. Richardson, 49 Ill. App. 3d 170, 172, 363 N.E.2d 924 (1977)). Even the constitutional right to a speedy trial is subject to waiver. See People v. Taylor, 32 Ill. 2d 165, 168, 204 N.E.2d 734 (1965); People v. Hamby, 27 Ill. 2d 493, 497, 190 N.E.2d 289 (1963). Also, statutorily based speedy trial claims are not constitutional in scope and, for this reason, are inappropriate for consideration in a postconviction proceeding. People v. French, 46 Ill. 2d 104, 107, 262 N.E.2d 901 (1970); see also People v. Greer, 212 Ill. 2d 192, 203, 817 N.E.2d 511 (2004), citing 725 ILCS 5/122 — 1 (West 2000) (postconviction proceedings are limited to consideration of constitutional issues not presented at trial).
¶5“[W]here the question concerns whether there has been a waiver of the [speedy trial] statute, [our supreme] court has held the case does not involve the denial of a constitutional right, and the defendant cannot raise the issue in a petition under the Post-Conviction Hearing Act.” People v. Morris, 3 Ill. 2d 437, 442, 121 N.E.2d 810 (1954). I disagree with the majority’s conclusion to the contrary.
¶6I am also puzzled by the majority decision to include a reference to both the dissent and the majority opinion in People v. Heider, 231 Ill. 2d 1 (2008). 384 Ill. App. 3d at 799. While Heider addressed forfeiture of an issue on appeal, the defendant had filed a written postsentencing motion in compliance with section 5 — 8—1(c) of the Unified Code of Corrections (730 ILCS 5/5 — 8—1(c) (West 2002)). Heider, 231 Ill. 2d at 15. The dispute involved the wording of the postsentencing motion. The case has no relevance here, where no posttrial motion was filed.
¶7Finally, in response to the State’s petition for rehearing, the majority holds the State to the same waiver rule that it relaxed for defendant. The majority cites Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)) (points not argued in initial appellate brief are waived). But a petition for rehearing is an appropriate vehicle to bring to the reviewing court’s attention points that were originally overlooked. See 210 Ill. 2d R. 367(b). Both the parties and the court overlooked the fact that defendant filed a motion to suppress that tolled the running of the speedy trial statute. The fact that the parties mistakenly believed the speedy trial statute had run cannot act to negate what actually occurred in the trial court. It is the record, and not the statement of that record propounded in the parties’ briefs, that binds the appellate court. County Board of School Trustees v. Bendt, 30 Ill. App. 2d 329, 334, 174 N.E.2d 404 (1961). The record “ ‘imports absolute verity, and is the sole, conclusive and unimpeachable evidence of proceedings in the lower Court.’ ” Bendt, 30 Ill. App. 2d at 334, quoting McGurn v. Brotman, 25 Ill. App. 2d 294, 167 N.E.2d 12 (1960). The majority here failed to take into consideration the impact that defendant’s motion to suppress had on his speedy trial claim despite the clear and unequivocal law in this state that such a motion tolls the running of the speedy trial statute. See People v. McDonald, 168 Ill. 2d 420, 440, 660 N.E.2d 832 (1995). The majority then compounded this error by refusing to consider, under the guise of waiver, the State’s legitimate point on rehearing that defendant’s right to a speedy trial was not, in fact, violated.