¶1dissenting:
¶2We have avoided the true issue here. Is the 120-day (in custody) or 160-day (on bail or recognizance) rule merely suspended during the time of a trial resulting in a mistrial? The majority employs the statute (Ill. Rev. Stat. 1973, ch. 38, par. 103—5) pertaining to “when … a person is simultaneously in custody upon more than one charge” as relevant to this issue. I do not read it so.
¶3The chronology of this case tells much:
¶4(1) On February 8, 1974, defendant filed a demand for an immediate jury trial and a motion for discovery, which was not answered until 4M> months later, namely, June 28, 1974.
¶5(2) On July 15, 1974, 157 days after the demand for trial, the trial commenced. A mistrial was declared on July 24, 1974, because of the jury’s inability to agree on a verdict.
¶6(3) On December 3, 1974, 131 days after the mistrial, a hearing was had on the defendant’s motion to dismiss on the basis that an unreasonable period had elapsed since the date of the mistrial. There the administrative assistant to the chief judge testified that the court was “more or less shut down” during the month of August. The case was set for two dates in September, but was not tried. As the majority notes, the September delay is also unexplained.
¶7The admittedly unexplained delay by the People, 61 days at the minimum and 131 days at the maximum, after the order of retrial, and beyond the 160 days, was clearly unreasonable. It does not represent a suspension of the time of the trial resulting in a mistrial, but a period substantially in excess of the 160 days permitted by law.
¶8The ultimate responsibility for the condition of the courts rests with the People, rather than the defendant. (Barker v. Wingo (1972), 407 U.S. 514, 531, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) This court long ago held- that sickness of judges does not constitute an exception the court may read into this law. “To an application under this statute it is not sufficient for the prosecution to say that it was inconvenient or impossible for the judges of the circuit to hold the term of court at the time fixed by the statute. … If the provisions of the law do not insure the transaction of the business of the courts a remedy may be afforded by the legislature. We are without power to read into the statute in question an exception which does not appear there.” (Newlin v. People (1906), 221 Ill. 166, 173-74.) So also the fact that the State’s Attorney was ill does not justify delay of the trial. People v. Hatchett (1967), 82 Ill. App. 2d 40, 50.
¶9Here the State plainly neglected its duty to fulfill the statute, and, more importantly, violated the constitutional right of the defendant to a speedy trial.
¶10The majority, in an effort to justify the 228 days between the trial demand and the final trial date, referred to certain proceedings against defendant on other charges in the latter part of October. But by October, defendant’s right to a retrial on the original charges had already been violated.
¶11Where the defendant himself causes the delay, the statute provides that such “shall temporarily suspend for the time of the delay the period within which a person shall be tried … and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.” (Ill. Rev. Stat. 1975, ch. 38, par. 103—5(f), Pub. Act 79—842, effective October 1, 1975.) Where the jury causes the delay through an inability to agree on the verdict, and thus causes a mistrial, it would seem that the obvious legislative intent is to merely suspend the period just as if the defendant had brought about the delay. It might facilitate the administration of justice if the statute were amended to specifically provide that the time of the delay caused by a trial ending in a mistrial shall merely suspend the time within which a person shall be tried.
¶12The right to a speedy trial is constitutional in character. If the 160-day rule has any meaning, it must be implemented. In my opinion the appellate court, which sustained the circuit court’s order allowing defendant’s motion for discharge, was correct.