WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DANIEL A. ROBERTS, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
This cause comes here pursuant to writ of error to the then criminal court of Cook County, which entered an order dismissing defendant's amended petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1959, chap. 38, pars. 826-832) without a plenary hearing.
In a June 13, 1956, jury trial defendant was found guilty of armed robbery and sentenced to a term of 25 years to life. He thereafter procured a bill of exceptions as an indigent, counsel was appointed, and a writ of error issued to review the trial proceedings. It is apparent from the record that defendant and his counsel were not in agreement as to the scope of the review which was sought. Our earlier opinion (People v. Hamby, 27 Ill.2d 493), affirming the conviction indicates only two grounds for reversal were urged: (1) that, in drafting the indictments, the People knowingly referred to prior convictions which were void, thereby denying defendant due process, and (2) that defendant was denied a timely trial.
It also appears that at the time the original writ of error was pending defendant filed a pro se petition (subsequently amended) in the trial court under the Post-Conviction Hearing Act, contending that his constitutional rights had been violated in that (1) the State's Attorney perpetrated a fraud by omitting from the defendant's reindictment an habitual criminal count appearing in his original indictment which was nolle prossed by the People; (2) his confession was coerced by threats and violence; (3) the prosecutor knowingly employed perjured testimony; (4) he was denied due process of law at the hearing on his motion to suppress the confession in that the prosecutor introduced into evidence a photograph depicting the defendant at a time prior to the alleged violent acts, representing it to have been taken subsequent thereto; (5) the prosecutor perpetrated a fraud during the trial by introducing into evidence a spurious medical record; (6) the court erroneously denied his motion for continuance due to ill health; (7) the bill of exceptions presented on his original writ of error was incorrect; and (8) the People knowingly subverted the truth by denying possession of certain property of the defendant which would have been favorable to his defense and would have impeached certain State witnesses.
On June 2, 1962, during the period subsequent to the issuance of the original writ of error, and prior to hearing in this court, defendant requested us to strike the abstract and briefs filed by his appointed counsel and to appoint other counsel for him or, alternately, to permit him to proceed pro se. This motion was denied in toto, as was his subsequent motion to strike all documents filed by his counsel. It is clear that the reason for this action by defendant was his belief that the grounds for reversal argued by counsel in his brief were (as subsequently determined by us) without merit, and that defendant desired review of some, if not all, of the errors alleged in the pending post-conviction petition.
Subsequent to the affirmance by this court on the original writ of error, the People moved to amend their motion to dismiss the post-conviction petition by adding as grounds for dismissal the allegation that the errors included in the petition were res judicata as a consequence of this court's decision. At the conclusion of the hearing upon the amended motion to dismiss, the abstract of record indicates the following occurred:
"The Court: * * * For the purpose of the record, the court will overrule the motion
Mr. Robbins [assistant State's Attorney]: Off the record.
(Discussion had off the record.)
The Court: Strike that. The Court will allow the motion to dismiss the amended petition.
Mr. Robbins: and the case dismissed.
The Court: That will be the order."
From the discussion between court and counsel preceding the above-quoted ruling, it is apparent that the court entertained misgivings as to the sufficiency of some of the allegations of the petition; it is, however, impossible to determine with any degree of certainty whether the dismissal was predicated on the judge's belief that the allegations of the petition were insufficient or that consideration of the errors alleged was barred by the res judicata doctrine. The ambiguity here existing demonstrates the desirability of ...