JUSTICE KNECHT delivered the opinion of the court:

On February 1, 2000, defendant, Ray Lamar Hillsman, wasarrested on various charges and the Illinois Department ofCorrections (DOC) issued a parole hold. On May 22, 2000, thedate of defendant's trial, the trial court denied the State'smotion to continue because defendant had been in custody for 112days. The State did not accept the trial court's offer toreschedule the trial for defendant's 120th day of custody. Instead, the State entered a nolle prosequi on the charges andrefiled the charges the same day. On October 2, 2000, the dateof defendant's trial on the refiled charges, the trial courtgranted defendant's motion for discharge because the Stateviolated his right to a speedy trial under section 103-5(a) ofthe Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(a) (West 1998)). The State appeals, arguing defendant's rightto trial within 120 days did not commence because he was incustody on a parole hold. We affirm.

I. BACKGROUND

On February 1, 2000, defendant was arrested on thecharges of unlawful possession of a weapon by a felon (720 ILCS5/24-1.1(a) (West 1998)) and obstructing justice (720 ILCS 5/31-4(a) (West 1998)). As a result of defendant's arrest, DOC issueda parole hold. Defendant did not post bond on the February 2000charges (case No. 00-CF-52) and he remained in custody. Therecord is silent as to the specific date DOC issued the parolehold and when defendant was remanded to DOC on the parole hold.

Defendant's trial was scheduled for May 22, 2000, whichwas the 112th day defendant was in custody. On this date,defendant filed a motion to dismiss and a motion in limine. TheState moved to continue the case to a date beyond defendant's120th day in custody, but the trial court denied the State'srequest. The trial court offered to reschedule defendant's trialto May 30, 2000, which would be defendant's 120th day in custodyin case No. 00-CF-0239. The State did not agree to this date andmoved to enter a nolle prosequi. The State also indicated itwould refile the charges later the same day.

Defendant objected to the State's motion to nol-prosthe charges and asserted the State was attempting to circumventthe 120-day rule set forth in section 103-5(a) of the Code. 725ILCS 5/103-5(a) (West 1998). The trial court allowed the Stateto nol-pros the charges on the morning of May 22, 2000. Defendant remained in custody on the previously issued parole hold andthe State refiled the charges herein (No. 00-CF-0239) later thesame day. This time, however, the State allowed defendant toobtain a recognizance bond on the refiled charges; but defendantremained in custody on the parole hold. We note the limitedrecord before us indicates defendant's bond was set at $1 millionon the February 2000 charges. The record shows defendant wasremanded to DOC after the May 22, 2000, hearing, and a trial datewas not set within 120 days.

On October 2, 2000, the date of defendant's trial onthe refiled charges, defendant filed a motion for dischargealleging he had been in continuous custody since his February 1,2000, arrest, a total of 245 days. In support of his motion,defendant argued that at the May 22, 2000, hearing, the Stateimproperly moved to nol-pros the original charges in No. 00-CF-52and then refiled the charges herein on the same day in an effortto circumvent the 120-day rule. The State was not prepared toaddress defendant's motion and sought a continuance, which thetrial court denied. After the trial court granted a short recessto allow the State time to respond to defendant's motion fordischarge, the State simply objected to defendant's motionwithout providing any legal argument. The trial court founddefendant's motion for discharge was "well taken." Accordingly,the court granted the motion and dismissed the charges withprejudice.

The State now appeals, arguing the trial court erredwhen it granted defendant's motion for discharge because the 120-day speedy-trial term does not commence while a defendant is heldon a parole hold. In the alternative, the State argues the trialcourt abused its discretion when it denied the State's motion tocontinue. We affirm.

II. ANALYSIS

A. Motion for Discharge

Every person in custody in Illinois for an allegedoffense shall be tried within 120 days from the date he or shewas taken into custody. 725 ILCS 5/103-5(a) (West 1998). Everyperson on bail or recognizance shall be tried within 160 daysfrom the date defendant demands trial. 725 ILCS 5/103-5(b) (West1998). Subsection (b) of section 103-5 also applies to personscommitted to any institution, facility, or program of DOC whohave untried complaints, charges, or indictments pending in anycounty of Illinois. 730 ILCS 5/3-8-10 (West 1998).

As a preliminary matter, we note the State's briefmentions defendant apparently never filed a demand for trial. Therefore, because DOC issued a parole hold after defendant'sarrest, the State asserts defendant was required to file ademand; then, under section 103-5(b), the State would have had160 days to try defendant. We will not entertain the State'sassertion for two reasons. First, the record before us begins onMay 22, 2000, the date the State nol-prossed the original chargesand refiled new charges against defendant. Because defendant wasoriginally arrested on February 1, 2000, and the record is silentas to any activity that occurred in the case for nearly fourmonths, we cannot determine whether defendant filed a demandbetween February 1 and May 22, 2000. Second, the State did notraise the issue of whether section 103-5(b) applied to defendantand whether defendant had a duty to file a demand. Thus, thetrial court never had an opportunity to consider the issue. Therefore, because the record is unclear and because the Statefailed to pursue this issue before the trial court, we willaddress only the issue of whether the State violated defendant'sright to a speedy trial under section 103-5(a). See People v.Williams, 218 Ill. App. 3d 442, 443, 578 N.E.2d 313, 313-14(1991) (waiver applies to the State as well as to criminaldefendants).

The appellate districts appear divided as to whether adefendant's detention on a parole hold as a direct result of hisarrest on another charge is a "detention" for purposes of thespeedy-trial term. The State cites People v. Daily, 30 Ill. App.3d 413, 332 N.E.2d 146 (1975) (Fourth District), in support ofits position defendant's 120-day speedy-trial term did not runafter DOC issued its parole hold. Defendant, however, argues theState's reliance on Daily is weak because the facts in thepresent case are distinguishable and because other courts haveheld that a defendant who is held on a parole violation basedupon the same charge for which he is later tried, is "in custody"for purposes of computing the 120-day speedy-trial term. Peoplev. Patheal, 27 Ill. 2d 269, 271-73, 189 N.E.2d 309, 310-11(1963); People v. Manna, 96 Ill. App. 3d 506, 510-11, 421 N.E.2d542, 546-47 (1981) (Second District); People v. Burchfield, 62Ill. App. 3d 754, 756-57, 379 N.E.2d 375, 376-77 (1978) (ThirdDistrict); People v. Powell, 43 Ill. App. 3d 934, 936, 357 N.E.2d725, 726-27 (1976) (Third District). As explained below, weagree with defendant and find the State's total reliance on Dailyis misplaced.

In Daily, the defendant was arrested for armed robberyon August 17, 1973. He posted bond on September 5, 1973, and wasreleased. On September 7, 1973, he was arrested for a paroleviolation due to his arrest on the armed robbery charge. Heremained in custody until December 13, 1973. On that date, theparole warrant was withdrawn and defendant moved for return ofhis bond money. The State also granted defendant a recognizancebond, but in an attempt to remain in custody, defendant refusedto sign the bond. The court, however, granted the State's motionto release defendant on a recognizance bond and defendant wasreleased. Defendant's trial was set for January 14, 1974. Thetrial court denied defendant's motion for discharge on the basisof the 120-day rule. Daily, 30 Ill. App. 3d at 415, 332 N.E.2dat 147.

Under these facts, the court concluded the time defendant was incarcerated on a parole hold as a direct result of anarrest for armed robbery did not count toward the 120-day term. Daily, 30 Ill. App. 3d at 415, 332 N.E.2d at 148. We recognizedthat to be discharged under the 120-day rule, a defendant musthave been "in custody in connection with the charge for which hewas subsequently tried." Daily, 30 Ill. App. 3d at 415, 32N.E.2d at 147. We found the parole warrant and the armed robberycharge were "closely intertwined" but they were not interchangeable. The court determined because defendant was technicallyfree on bond from the armed robbery charge when the parolewarrant was withdrawn, the 120-day term did not begin to rununtil he asked for and received the return of his bond money fromthe original arrest charges. Therefore, the court concludeddefendant's detention on the parole warrant did not trigger the120-day rule. Daily 30 Ill. App. 3d at 415, 32 N.E.2d at 148.

The factual differences between Daily and the presentcase are significant. In the present case, the defendant did notpost bond on the original charges and, therefore, was neverreleased from custody. Further, even though the State agreed toa recognizance bond for defendant when it refiled the charges thesame day it nol-prossed the original charges, defendant remainedin continuous custody as a direct result of his February 1, 2000,arrest. In contrast, the defendant in Daily posted bond on thearmed robbery charges and was free when he was arrested and takenback into custody on the parole warrant. We also note in Daily,after being held in custody on the parole warrant for approximately 97 days, and defendant was again released because he wasstill free on bond from the armed robbery charge and the warrantwas withdrawn. Daily, 30 Ill. App. 3d at 414-15, 332 N.E.2d at147.

We find the current case is very similar to Burchfield,one of the cases cited by defendant. Initially, we note inBurchfield, the Third District found our decision in Daily wasinconsistent with the prior Illinois Supreme Court ruling inPatheal. In Patheal, nearly four months after being arrested andheld in custody in Coles County on an armed robbery charge, thedefendant was released into the custody of DOC for violating hisparole. Defendant was eventually taken back into custody inColes County, where, well after the statutory speedy-trial periodhad run, he stood trial on the armed robbery charges. On appeal,the State argued defendant was not in custody on the armedrobbery charge until he was returned to Coles County after beingreleased from DOC, and therefore, the speedy-trial term did notcommence until that time. The supreme court refused to dividethe time defendant spent in custody in Coles County and DOC intotwo separate periods and stated:

"Fiction would supplant fact if we were tosay that this entire period of confinement,just nine days short of the statutory fourmonths, is to be disregarded on the groundthat Coles County had no legal authority toput the defendant in jail because he wastechnically within the custody of the Department of Public Safety. The constitutionalright to a speedy trial does not depend uponsuch technicalities." Patheal, 27 Ill. 2d at 271, 189 N.E.2d at 310.

Even though the Burchfield court noted its disagreementwith our decision in Daily, we conclude the factual differencesbetween Patheal and Daily warranted our decision in Daily. Aspreviously discussed, the defendant in Daily was not in continuous custody, and he was free on bond on the original chargesuntil he asked for the return of his bond money. Due to theseimportant factual differences and because the facts before thecourt in Burchfield were more similar to Patheal than to Daily,the Burchfield court correctly declined to follow our decision inDaily. However, we do not agree with the Third District'sassessment of our holding in Daily as being "inconsistent" withPatheal. Burchfield, 62 Ill. App. 3d at 757, 379 N.E.2d at 377. Nevertheless, as discussed below, the facts of the present caseare dissimilar to those in Daily and similar to those inBurchfield; and therefore, we find Burchfield controls. InBurchfield, defendant was arrested on September 1, 1977, forunlawful possession of a controlled substance. Initially,defendant was unable to post bond, but the State later granted apersonal recognizance bond on the unlawful possession charge. However, defendant remained in custody due to the parole warrant. On January 6, 1978, the trial court granted defendant's motionfor discharge because he had been in custody over 120 days, andhe was never actually released on bond. Burchfield, 62 Ill. App.3d at 755-56, 379 N.E.2d at 376. The appellate court affirmed,holding where a defendant is in custody for a parole violationbased upon the charge for which he is later to be tried, he mustbe brought to trial within the 120-day period. Burchfield, 62Ill. App. 3d at 756-57, 379 N.E.2d at 377.

Burchfield is similar to the present case in that bothdefendants did not post bond on the original charges, and theyremained in continuous custody due to parole holds despite beinggranted recognizance bonds on the original arrest charges. Therefore, we find under the specific facts of the present case,the State should have taken the necessary steps to bring defendant to trial within 120 days, and the 120-day period began whendefendant was arrested and taken into custody on the originalcharges in No. 00-CF-52 on February 1, 2000.

We further agree with defendant's argument the State'sdecision to nol-pros and refile the charges later the same daywas an improper attempt to avoid the 120-day speedy-trial term,and therefore, the nolle prosequi did not toll the speedy-trialterm. The State does not contest the fact that on May 22, 2000,it moved to nol-pros the charges only after the trial courtdenied its motion to continue defendant's trial to a date pastthe 120-day speedy-trial term. On that day, defense counselargued against the State's motion to nol-pros the charges becausecounsel believed the State was attempting to avoid statutorylimitations. Defense counsel again presented this argumentduring the October 2, 2000, motion for discharge, but the Statedid not respond to defendant's argument before the trial court oneither occasion, nor does the State address this issue on appeal.

In most situations, the State's decision to nol-proscharges against a defendant tolls the running of the statutoryspeedy-trial period because the pending charge is terminated andthe refiling of the charge is the institution of a new proceeding. People v. Young, 220 Ill. App. 3d 488, 495-96, 581 N.E.2d241, 246 (1991), citing People v. Stinnett, 166 Ill. App. 3d1027, 1028, 520 N.E.2d 1204, 1204 (1988) (Fourth District). Inboth Young and Stinnet, the courts stated because no charges werepending and because defendants were released from bond after theState nol-prossed the charges, the speedy-trial provision did notapply.

However, a nolle prosequi will not toll the statutoryspeedy-trial period if the State uses it to cause delay or toavoid statutory limitations. In re A.F., 282 Ill. App. 3d 930,932, 668 N.E.2d 1168, 1170 (1996), citing People v. Decatur, 191Ill. App. 3d 1034, 1038, 548 N.E.2d 509, 512 (1989). Thus, ourinquiry is whether the State abused its power to use the nolleprosequi and whether the refiling of the charge was "vexatious,repetitious[,] or employed to manipulate the proceedings in orderto evade or frustrate the purpose of the speedy-trial statute." Decatur, 191 Ill. App. 3d at 1038, 548 N.E.2d at 512. In thesecases, the courts found no abuse of power because no evidenceshowed the State was attempting to either gain a tactical advantage over the defendants or frustrate defendants' right to aspeedy trial. A.F., 282 Ill. App. 3d at 933, 668 N.E.2d at 1170(State nol-prossed charges because police witnesses were unavailable); Decatur, 191 Ill. App. 3d at 1038, 548 N.E.2d at 512(State nol-prossed charges because laboratory analysis wasincomplete). It is also important to note the defendants inthese cases were released from custody after the State nol-prossed the charges.

In the present case, there is no doubt the State'smotive in moving for a nolle prosequi and refiling the chargeswas to avoid the running of the 120-day speedy-trial period. TheState requested a continuance, but defendant objected because hehad been in custody for nearly 120 days. Only after the trialcourt denied the State's motion to continue the trial to a datepast defendant's 120-day term did the State moved to nol-pros thecharges. The State even admitted it intended to simply refilethe charges later the same day, which it did, thus averting the120-day term. The State did not indicate any other reason forits motion, such as problems locating witnesses or obtaining labresults or other necessary evidence. Further, despite defendant's recognizance bond on the refiled charges, defendantremained in continuous custody due to the parole hold after theState nol-prossed the charges and before it refiled new charges afew hours later. Under these facts, we find no other explanationfor the State's ruse other than a blatant attempt to avert therunning of the 120-day speedy-trial period. Therefore, we findthe nolle prosequi did not toll defendant's speedy-trial period.

In sum, we affirm the trial court's order grantingdefendant's motion for discharge for two reasons. First, on therecord before us, defendant's 120-day speedy-trial term commencedon February 1, 2000, the date defendant was arrested and takeninto custody, and the State failed to bring him to trial within120 days. Second, the State's improper entry of a nolle prosequion the original charges and its refiling of the charges on thesame day did not toll the running of defendant's 120-day speedy-trial term. Therefore, defendant remained in custody for 245days, well beyond the 120-day term, before the State brought himto trial on October 2, 2000.

B. Motion To Continue

During the trial court proceedings on October 2, 2000,the State made a motion to continue when defendant presented hismotion for discharge. The State asserted it needed more time toresearch the issue. The trial court denied the State's request.On appeal, the State argues the trial court abused its discretionwhen it denied the State's motion.

A trial court's decision to grant or deny a motion tocontinue is a discretionary matter, and this court will not setaside the trial court's determination unless it amounts to anabuse of discretion. People v. Brown, 92 Ill. 2d 248, 258, 442N.E.2d 136, 141 (1982). An accused is entitled to discharge ifhis trial begins more than 120 days after he was placed incustody, and a defendant in such a position is entitled todischarge on the day of his scheduled trial. People v. Ladd, 294Ill. App. 3d 928, 935, 691 N.E.2d 896, 903 (1998) (citing Peoplev. McDonald, 168 Ill. 2d 420, 438-39, 660 N.E.2d 832, 839(1995)), aff'd, 185 Ill. 2d 602, 708 N.E.2d 359 (1999).

In the present case, the trial court took a recess toallow the State to perform some research and formulate a responseto defendant's motion. Further, the State was on notice defendant intended to file a motion for discharge since the May 22,2000, hearing when defense counsel announced his intentions inopen court. Finally, defendant's motion for discharge was heardon the date of his scheduled trial, and he was entitled to bedischarged on that date if the motion was successful. Accordingly, the trial court did not abuse its discretion when itdenied the State's motion to continue.

III. CONCLUSION

We affirm the trial court's order granting defendant'smotion for discharge.

Affirmed.

McCULLOUGH, P.J., and STEIGMANN, J., concur.