JUSTICE BOWMAN delivered the opinion of the court:

After admitting that he killed his aunt, defendant, CarlosIzquierdo-Flores, was charged by indictment with second-degreemurder (720 ILCS 5/9--2(a)(1), (a)(2) (West 2000)). More than 120days after defendant filed a speedy trial demand on the originalcharges, the State filed a second indictment charging first-degreemurder (720 ILCS 5/9--1(a)(1), (a)(2) (West 2000)) and sought leaveto nol-pros the second-degree murder charges. The trial courtgranted defendant's motion to dismiss the second indictment. TheState appeals, and we reverse and remand.

On September 7, 2000, the State charged defendant by complaintwith second-degree murder. On the same date, defendant filed aspeedy trial demand. On September 20, 2000, the State filed anindictment charging defendant with second-degree murder. Count Iof the indictment alleged that, on September 6, 2000, whilecommitting first-degree murder and acting under a sudden andintense passion resulting from serious provocation by the victim,defendant choked the victim with his hands, thereby causing herdeath. Count II alleged that defendant acted under an unreasonablebelief that circumstances that would justify or exonerate thekilling were present.

On September 26, 2000, the trial court arraigned defendant andset a November 20 trial. On November 3, 2000, at defendant'srequest, the court continued the trial until January 2, 2001. OnDecember 6, 2000, the parties agreed to continue the trial toJanuary 8, 2001. On January 8, defendant requested a conferencepursuant to Supreme Court Rule 402(d) (177 Ill. 2d R. 402(d)). Following the conference, the parties stated that plea negotiationswould continue.

On January 10, 2001, the State sought a continuance becauseDr. Nancy Jones, who performed the autopsy on the victim, would beunavailable to testify until after January 19. During a January 16hearing, the State sought leave to dismiss the pending charges andfile first-degree murder charges. Daniel Kleinhubert, theassistant State's Attorney, explained that Jones was out of thecountry during all of December 2000 and, in January, was engaged intrials and teaching classes. Kleinhubert explained that thesecond-degree murder charge was based on defendant's statement tothe police that he and the victim got into a fight and that, whiledefending himself, defendant strangled her with his hands. Kleinhubert spoke to Jones on January 12, 2001, and reviewed theautopsy report with her. Jones told Kleinhubert that afterreviewing the photos of the victim she was of the opinion that themarks on the victim's neck were made by a ligature, such as a rope,belt, or piece of clothing. Noting that defendant had been incustody for months and was prepared to offer an open plea to thepending charge, defense counsel objected to the new charges. Thetrial court did not rule on the State's request

On January 17, 2001, the State filed a second, three-countindictment charging first-degree murder. The second indictmentalleged that defendant used an object to strangle the victim. Defendant moved to dismiss the second indictment. Attached todefendant's motion were Jones's autopsy report dated September 16,2000, and the grand jury minutes from September 20, 2000.

The report states that Jones performed the autopsy onSeptember 7, 2000. A receipt stamp on the report bears a date ofSeptember 18, 2000. In the report, Jones concluded that the causeof death was strangulation. In listing the victim's injuries, thereport notes:

"2. On the undersurface of the chin, there is a deep 4.75by 1 inch red abrasion.

3. On the anterior neck, over the midline, there is alarge, deep red abrasion which measures 5 by 1.75 inch.

4. On the undersurface of the chin, there are two smallerdeep red abrasions which measure 1 by 0.5 and 1.25 by 3/8inch."

The grand jury minutes included the testimony of DetectiveEduardo Navarro of the Waukegan police department. Whilequestioning Navarro, the assistant State's Attorney referred toJones's report. Navarro testified that, when he first observeddefendant on September 6, 2000, defendant had scratches on his faceand neck and a laceration on his finger. Defendant was taken tothe hospital for treatment and later gave Navarro a statement. Defendant stated that he returned home early in the morning aftera night of drinking. He went into the bathroom to clean up. Whenhe came out of the bathroom, the victim was waiting for him andbegan striking him with a belt. Defendant took the belt from herand tossed it away. Defendant and the victim continued struggling. Defendant put his hands on the victim's neck and choked her untilshe stopped fighting.

In its response to defendant's motion, the State claimed thatit did not receive Jones's report until December 11, 2000, and thatJones was unavailable until January 12, 2001. The State assertedfurther that on January 16, 2001, Detective Navarro spoke to thevictim's sister, Gabriela Flores. Flores stated that, three daysafter the incident, she returned to the apartment where she,defendant, and the victim lived. She went there to clean theapartment before taking the victim's body to be buried in Mexico. While looking in a closet that defendant used, Flores found aplastic bag containing a bloody shirt, bloody pants, and a bloodybelt. She threw the bag and its contents in the Dumpster.

Relying on speedy trial principles, the trial court granteddefendant's motion to dismiss the second indictment. The courtfound that the new charges arose from the same acts that gave riseto the original charges and that the new charges were not theresult of newly discovered evidence. As a result, the first-degreemurder charges were subject to the original speedy trial term. Because the first-degree murder charges were not before the courtwhen defendant requested or agreed to the continuances, any delaythat was attributed to defendant in connection with the originalcharges could not be applied to the new charges.

The trial court denied the State's timely motion to reconsiderand denied defendant's request to be released pursuant to SupremeCourt Rule 604(a)(3) (188 Ill. 2d R. 604(a)(3)). On February 8,2001, the State filed a certificate of impairment and a timelynotice of appeal. It appears that the trial court has delayed theproceedings on the second-degree murder charges until this appealis resolved.

Under the speedy trial statute, section 103--5(a) of the Codeof Criminal Procedure of 1963 (Code), a defendant who is in custodyshall be tried within 120 days from the date he is taken intocustody. 725 ILCS 5/103--5(a) (West 2000). Section 103--5(f)provides further that the 120-day period will be suspended duringany delay occasioned by the defendant. 725 ILCS 5/103--5(f) (West2000).

Where new and additional charges arise from the same facts asthe original charges and the State had knowledge of these facts atthe commencement of the prosecution, the time for bringing thedefendant to trial is governed by the same limitations period thatapplies to the original charges. People v. Gooden, 189 Ill. 2d209, 217 (2000); People v. Williams, 94 Ill. App. 3d 241, 248-49(1981). In computing the speedy trial period on the new charges,however, continuances obtained by the defendant in connection withthe original charges are not attributed to him. People v.Dressler, 317 Ill. App. 3d 379, 387 (2000). Such delays do notapply to the new charges because the new charges were not beforethe court when the defendant obtained the continuances. Williams,94 Ill. App. 3d at 248-49.

The State argues that the first-degree murder counts were not"new and additional" charges. According to the State, because thesecond-degree murder charges included all of the elements of first-degree murder, the first-degree murder charges actually were beforethe trial court from the beginning of the prosecution.

The State's argument is premised on the general rule that anindictment of an offense also serves as an indictment of allincluded offenses even though the latter are not specifically setforth in the indictment. People v. Melmuka, 173 Ill. App. 3d 735,736 (1988). If the State later charges the defendant with such anincluded offense, then any delay occasioned by the defendant on theoriginal charge also applies to the new charge. Dressler, 317 Ill.App. 3d at 387 (where State originally charged defendant withaggravated kidnaping and later added kidnaping charge based on samefacts, kidnaping charge was not a "new and additional" charge).

Second-degree murder is a lesser mitigated offense of first-degree murder. People v. Jeffries, 164 Ill. 2d 104, 122-23 (1995);People v. Kauffman, 308 Ill. App. 3d 1, 10 (1999). The elements offirst-degree murder and second-degree murder are identical. Jeffries, 164 Ill. 2d at 122. Second-degree murder differs fromfirst-degree murder only because of the presence of a statutorymitigating factor such as a serious provocation or an unreasonablebelief in justification. People v. Porter, 168 Ill. 2d 201, 213(1995). Second-degree murder is a "lesser offense" only in thesense that it is punished less severely than first-degree murderand it is mitigated because it is first-degree murder plus thepresence of a mitigating factor. Jeffries, 164 Ill. 2d at 122.

We agree with the State that the first-degree murder countswere not "new and additional" charges. If the State had proceededon the second-degree murder charges here, it would have beenrequired to prove all of the elements of first-degree murder. Therefore, in essence, the first-degree murder charges were beforethe court from the beginning of the prosecution.

Defendant argues that, although the second indictment did notadd any new elements to the charged offense, it did place on him aburden that did not exist before. Defendant notes that, bycharging a defendant with second-degree murder, the State allegesthat it can prove the elements of first-degree murder but concedesthe presence of mitigating factors. See People v. Mitchell, 221Ill. App. 3d 926, 932 (1991); People v. Burks, 189 Ill. App. 3d782, 785 (1989). According to defendant, if the State were able towithdraw the second-degree murder charges and charge him withfirst-degree murder, he would be required to litigate whether amitigating factor was present, an issue that was not before thecourt previously.

A defendant charged with second-degree murder is not requiredto prove anything. The State must prove all of the elements offirst-degree murder and concede the presence of a mitigatingfactor. People v. Golden, 244 Ill. App. 3d 908, 919 (1993). Whena defendant is on trial for first-degree murder, to be found guiltyof second-degree murder, he must prove by a preponderance of theevidence the presence of a statutory mitigating factor. 720 ILCS5/9--2(c) (West 2000). If the defendant meets this burden, thenthe State must disprove beyond a reasonable doubt any mitigatingfactor that the defendant has raised. 720 ILCS 5/9--2(c) (West2000); Golden, 244 Ill. App. 3d at 919.

Although allowing the first-degree murder charges here mayplace an additional issue before the trier of fact, the factremains that the elements of second-degree murder and first-degreemurder are identical. The mitigating factors that reduce theoffense from first-degree murder to second-degree murder are notelements of the offense but are affirmative defenses that do notbear upon the ultimate burden of proof. Golden, 244 Ill. App. 3dat 918. " 'Establishing the mitigating circumstances of seconddegree [murder] *** does not change the fact that the person isstill a murderer; it merely results in a less severe punishment. Thus, the mitigating circumstances do not establish "guilt" ***; they merely prove that defendant is less culpable than othermurderers.' " (Emphasis in original.) People v. Newbern, 219 Ill.App. 3d 333, 350-51 (1991), quoting T. O'Neill, An Analysis ofIllinois' New Offense of Second Degree Murder, 20 J. Marshall L.Rev. 209, 222 (1986).

Also, the second indictment here does not necessarily placeany additional burden on defendant. As we just noted, the secondindictment does not allege any new elements. Moreover, althoughthe statute places on the defendant the burden of proving thepresence of a mitigating factor, a defendant is entitled to havethe jury instructed on his theory of the case, and an instructionis warranted if there is even slight evidence to support it. People v. Heaton, 256 Ill. App. 3d 251, 257 (1994). Thus,defendant could present evidence to establish a mitigating factor,but the State's evidence could establish it as well. Golden, 244Ill. App. 3d at 917.

The relevant pattern jury instructions discussing the burdenof proof direct the jurors to consider all of the evidence bearingon whether a mitigating factor is present. Illinois Pattern JuryInstructions, Criminal, No. 2.03A (4th ed. 2000). When the onlyevidence of second-degree murder has come out during the State'scase, the defendant may request that the jury be instructed that"[t]he defendant is not required to present any evidence in orderto establish the existence of a mitigating factor." IllinoisPattern Jury Instructions, Criminal, No. 2.03A (4th ed. 2000). Here, even if defendant did not present any evidence, thecircumstances of the offense potentially would support giving thejury a second-degree murder instruction.

Defendant stresses that first-degree murder is a more seriousoffense with greater penalties. This does not affect our analysis,however. We recognize that the rule upon which the State reliestypically is applied where the subsequent charge is a lesserincluded offense of the original charge. The lesser mitigatedoffense category presents a unique situation, however, that fallsunder the rule as well. As our supreme court has recognized,"second degree murder is first degree murder plus mitigation." Porter, 168 Ill. 2d at 213. Because the first-degree murdercharges here do not require defendant to defend against anyelements that were not before the trial court previously, allowingthe State to proceed on the second indictment would not frustratethe purpose of the speedy trial statute.

For these reasons, we agree with the State that the first-degree murder charges in the second indictment were not "new andadditional charges." As a result, the delays attributed todefendant in connection with the second-degree murder charges applyto the first-degree murder charges as well. Because the speedytrial term had not expired when the State filed the secondindictment, the trial court should not have dismissed it.

To avoid confusion on remand, we stress that the filing of thesecond indictment did not commence a new speedy trial term. Tolledby the delays occasioned by defendant and the time during whichthis appeal is pending (see 188 Ill. 2d R. 604(a)(4)), the originalterm governs the second indictment. There is no question that thesecond indictment arises out of the same incident upon which theoriginal charges were based. Also, the trial court properly foundthat the State should be charged with knowledge of the facts givingrise to the second indictment. The autopsy report was completedbefore the original indictment was filed in September 2000, and theprosecuting attorney referred to the report during the originalgrand jury proceedings. The State claims that Dr. Jones wasunavailable during December 2000 and the first part of January2001. The State fails to explain, however, why it could not haveconsulted with Dr. Jones in September, October, or November 2000 orwhy it could not have asked another medical expert to review theautopsy report. There is nothing indicating that the opinionsJones expressed in January 2001 were based on anything other thanthe original autopsy report.

Also, the State claims that it was not until January 2001 thatit learned about the bloody belt and clothes hidden in defendant'scloset. We fail to see how this is new evidence. From thebeginning of the prosecution, the State knew that a belt wasinvolved in the altercation and that defendant briefly possessedit. Also, the State knew that defendant was injured during thealtercation with the victim. The State does not explain how thediscovery of the belt or the clothes bolsters the first-degreemurder charges. Clearly, the delay in filing the first-degreemurder charges was not due to the discovery of new evidence butinstead was the result of the State's lack of diligence ininvestigating the case.

The judgment of the circuit court of Lake County is reversed,and the cause is remanded for further proceedings consistent withthis opinion on the second indictment.

Reversed and remanded.

McLAREN and BYRNE, JJ., concur.