Writ of error to the Criminal Court of Cook County; the Hon.
DAVID A. CANEL, Judge, presiding. Reversed in part, writ of error
denied in part.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
This is a combined appeal from a revocation of defendant's probation and dismissal of his post-conviction petition.
After a sanity hearing, defendant was permitted to plead guilty to three indictments charging auto theft, and on March 27, 1961 he was placed on probation for five years. In addition to the usual statutory conditions of probation (e.g., that the probationer not violate any criminal law; that he report periodically to his Probation Officer), the court also provided, among other conditions, the following:
(1) To submit to psychiatric care until cured. Report monthly.
(3) To be gainfully employed.
(4) Monthly church attendance.
On May 7, 1962, on petition of the Probation Officer, a rule was issued on defendant to show cause why his probation should not be revoked. The bases for the rule were that:
(1) Defendant was charged with burglary in the Municipal Court of Chicago. The charge was nolle prossed as defendant was in the Illinois State Psychopathic Institute.
(2) Two months later defendant was discharged from the Institute and a Social Worker there advised the Probation Officer that defendant "had failed in their program"; that he had had sexual relations with female patients.
(3) "The defendant was a poor Catholic but accepted help from St. Vincent DePaul."
(4) An employee at the Welfare Commission advised the Probation Officer that "defendant had gone to the Bethany Lutheran Church, Thorndale and Magnolia asking for help and berating the Catholic Church."
(5) An ambiguous charge from which it might be inferred that defendant had failed to report properly to the Probation Officer.
Another Behaviour Clinic examination of defendant was ordered and the rule to show cause came on for hearing on May 28, 1962. Defendant was present but without counsel as he had expected to be represented by the Public Defender who was absent. A lawyer friend of defendant's family was in court as a spectra, but had not been retained to represent defendant. Apparently on the misunderstanding that this lawyer was acting as counsel for defendant, the court proceeded with the hearing. At its conclusion defendant's probation was revoked in all three cases, and he was sentenced to the penitentiary for concurrent terms of two to six years.
In the light of this court's decision in People v. Burrell, 334 Ill. App. 253, 258, 79 N.E.2d 88; other decisions, including Gideon v. Wainwright, 372 U.S. 335; Douglas v. California, 372 U.S. 353; and the language of the statute governing such a hearing, which provides that the probationer's "right to have counsel shall be the same as in the action which resulted in such probation" (Ill Rev Stats, c 38, § 789.1); the State's Attorney has filed in this court a Confession of ...