( People v. Nowak (1970), 45 Ill.2d 158; People v. Baskin (1967), 38 Ill.2d 141.) And though the statutory period is not coextensive with this right ( People v. Arndt (1972), 50 Ill.2d 390; People v. Love (1968), 39 Ill.2d 436), if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to a dismissal of the charges ( People v. Love (1968), 39 Ill.2d 436; People v. Wyatt (1962), 24 Ill.2d 151; see also Strunk v. United States (1973), 412 U.S. 434, 37 L.Ed.2d 56, 93 S.Ct. 2260; Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182). Though this court has also held that the statute implements the constitutional assurance of a speedy trial and must be liberally construed ( People v. Fosdick (1967), 36 Ill.2d 524, 528), the question of whether a defendant's right to a speedy trial has been violated depends upon the surrounding circumstances of each case ( People v. Beyah (1977), 67 Ill.2d 423; People v. Love (1968), 39 Ill.2d 436).
We believe this argument is also without merit. In People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819, the defendant argued the State could not appeal a dismissal based on denial of his constitutional right to a speedy trial because this ground is not enumerated as an appealable ground in section 114-1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1977, ch. 38, par. 114-1.) The court held the right of the State to appeal in a criminal case is not as limited as the statute appears to indicate:
The State argues that the trial court, by reducing the charge, in effect dismissed the original charge brought. • 2 In People v. Rotramel, supra, the court stated, "In People v. Love (1968), 39 Ill.2d 436, 438-440, it was held that the intent of section 114-1 was not to reduce the State's Attorney's right of appeal to only the ten grounds set forth in the statute, but to include within that right those instances whereby the substantive effect of the judgment would be the dismissal of the indictment, information or complaint. See also, People v. Petropoulos (1966), 34 Ill.2d 179, 181, and People v. Finkelstein (1939), 372 Ill. 186, 192.
In determining whether the defendant's right to a speedy trial has been denied, the analysis must begin at the time the defendant is first charged with an offense, whether by arrest or by the filing of a complaint or an indictment. Dillingham v. United States (1975), 423 U.S. 64, 46 L.Ed.2d 205, 96 S.Ct. 303; People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819. • 10 Since preaccusation delay does not come within the purview of the Sixth Amendment, a defendant who is seeking to dismiss the action against him because of preindictment delay must prove actual prejudice by reason of the delay.
Although the statute is designed to implement the constitutional right to speedy trial, the constitutional right is not necessarily coextensive with the statutorily prescribed period. ( People v. Bazzell (1977), 68 Ill.2d 177, 181; People v. Love (1968), 39 Ill.2d 436, 443.) In determining whether there has been a breach of the constitutional right to a speedy trial, four factors are considered: the length of the delay; the reasons for the delay; the prejudice to the defendants; and whether the defendants waived that right. ( People v. Bazzell (1977), 68 Ill.2d 177, 182.)
( In re M.A., 132 Ill. App.3d at 446.) The M.A. court, however, did not consider the possibility of presuming actual and substantial prejudice under the reasoning of People v. Love (1968), 39 Ill.2d 436, 443, 235 N.E.2d 819, nor did it balance the interest of the minor respondent and the interests of society pursuant to People v. Lawson. In Love, the Illinois Supreme Court rejected the view that in considering the right to a speedy trial, the evil to be avoided by observance of the right was wrongful incarceration rather than wrongful accusation.
This court has held that the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 are not exclusive. ( People v. Lawson (1977), 67 Ill.2d 449, 455; People v. Love (1968), 39 Ill.2d 436, 439-40.) The State retains the right to appeal in any case of a judgment the substantive effect of which results in dismissal of a charge.
The defendant contends that he was denied his constitutional right to a speedy trial by reason of a 60-day continuance granted to the State. While the Illinois "four-month statute" implements the constitutional right to a speedy trial, it is not coextensive with the right. (People v. Tetter, 42 Ill.2d 569, 574; People v. Love, 39 Ill.2d 436, 443; Ill. Rev. Stat. 1969, ch. 38, par. 103-5.) Subsection (c) of par. 103-5 provides for an extension of the 120-day period for up to an additional 60 days if the court determines that the State, without success, has exercised due diligence to obtain material evidence, and that there are reasonable grounds to believe that such evidence can be obtained at a later date.
In November the Mississippi court ordered the extradition but it appears that because some members of the Kane County sheriff's office were absent from duty because of Asiatic flu the defendant were not returned to Illinois until February 5, 1969. We have said that a delay in proceeding to trial may be so prolonged that prejudice will be presumed ( People v. Love, 39 Ill.2d 436, 443). There was an interval between the judgment of conviction of Gaddis and Henry and their appearance in court in Kane County of approximately 26 and 25 months, respectively.
It is true, as defendant argues, that one charged with a crime has a constitutional right both to a speedy trial and to be represented by the counsel of his choice, where he has in fact retained counsel; however, the mere fact that a defendant is not tried within the 120-day period fixed by the implementing statute, due to the unavailability of his retained counsel, does not bring the two constitutional rights in conflict or put an accused in the position of having to elect between rights. While the 120-day statute implements the constitutional right to a speedy trial, it is not coextensive with, or the precise equivalent of, the right. ( People v. Love, 39 Ill.2d 436, 443; People v. Stuckey, 34 Ill.2d 521, 523.) Furthermore, both constitutional rights were designed for the protection of the accused, and it could not have been intended that one could be played against the other in order to provide an avenue to escape prosecution, which is the result for which defendant contends in this case.