Appeal from the Circuit Court of Mason County; the Hon. LYLE
E. LIPE, Judge, presiding. Reversed and remanded.
In two separate cases, the defendant entered a plea of guilty in the circuit court of Mason County to the charge of burglary. Concurrent sentences of two to fifteen years were imposed.
The defendant, by this appeal, contends that he did not understandingly waive counsel or the right to indictment by grand jury. Both cases originated by the filing of criminal complaints charging burglary and other crimes. Ultimately all charges except the burglary charges were dismissed. The conviction was based upon the criminal complaint.
The relevant portions of the record in both cases are identical and the appeals have been consolidated for decision.
On February 16, 1965, the two criminal complaints were filed charging the defendant and others with two counts each of burglary and theft and one count charging criminal damage to property. On February 18, the defendant appeared in court without counsel, was advised of his right to counsel, and at the request of the defendant the matter was continued so that he might engage counsel. On March 2, 1965, defendant again appeared without counsel. When the court made inquiry as to whether the defendant was represented by counsel the defendant responded that his attorney "hasn't come down from Peoria yet." The cause was again continued after the court advised the defendant that an attorney would be appointed if the defendant were unable to employ counsel. On March 9, 1965, the defendant appeared with court-appointed counsel and the cause was again continued, at the request of the defendant, until March 23. On the latter date, the court informed the defendant of his right to have the charges presented to the grand jury. The defendant asserted that he did not desire to waive indictment, stating, "I want to take it to the grand jury."
On the same day, the court-appointed counsel made a motion to withdraw for reasons unrelated to these proceedings. In the motion to withdraw counsel stated, "This is bound to extend past April 1st and I feel that he should have other counsel appointed for him to carry on from here. . . ." On March 25, defendant appeared without counsel. The court observed: "You last appeared in Court here on March 23, which was the day before yesterday and at that time you requested to be prosecuted by way of indictment by the grand jury and Mr. Wheeler asked leave of the Court to withdraw as your attorney and for good cause I granted him leave to withdraw as your attorney. I have not yet appointed another attorney to represent you, although if I remember correctly you asked me to when you were in Court the day before yesterday."
The defendant replied in the affirmative to this observation by the court. This was followed by an assertion by the defendant that he wished to change his plea and to enter a plea of guilty to these charges. The court admonished the defendant as to the consequences and advised the defendant that he was ineligible for probation by reason of a prior conviction. There followed this exchange between the defendant and the court:
Court: "Do you still wish to proceed with this?
Court: "Do you wish to proceed without an attorney?
Mr. French: "I would rather have one.
Court: "The last time you were in Court you asked me to appoint another attorney to represent you and as I understand this morning you want to proceed without an attorney and you want to enter your plea of guilty to this charge, to both of these charges, is that correct?
Mr. French: "If I plead guilty I can't have a lawyer, can I?
Court: "You can have a lawyer, you are entitled to be represented by an attorney either way whether you plead guilty or not, but it doesn't make any sense to be represented by a lawyer if you are going to enter your plea of guilty. In other words if you want me to appoint an attorney to represent you I would encourage you not to enter your plea of guilty until after you had time to consult with him. In other words if [sic] doesn't make much sense to come in and enter your plea of guilty and then ask for a lawyer, a Court appointed attorney. I don't care how you proceed on this, you have made up your mind several times now and you have changed it several times and ...