APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. JOHN M. FLAHERTY, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Defendant, Lloyd Dupree, was convicted of battery, a misdemeanor, after a bench trial by a magistrate of the circuit court of Cook County, and sentenced to two years probation, the first 90 days to be served at the Illinois State Farm. The conviction was affirmed by the appellate court (97 Ill. App.2d 327), and we granted defendant leave to appeal.
The issue presented here is whether defendant, charged with a misdemeanor, and tried without counsel, which was neither requested nor expressly waived, was deprived of statutory or constitutional rights.
The facts pertaining to commission of the crime of battery, which defendant allegedly committed upon his former wife, are set forth in the appellate court opinion, and since the sufficiency of the evidence to support the conviction is not questioned, those facts will not be delineated here.
After defendant was found guilty and sentenced, an attorney for defendant appeared and filed a motion for a new trial, the thrust of which was the alleged improper introduction in evidence of defendant's knife and jacket. The motion recited that defendant had no counsel, but made to allegation that he was not apprised of his right to counsel, nor complained that he was thereby deprived of statutory or constitutional rights. Upon denial of that post-trial motion, defendant appealed.
In lieu of a verbatim transcript of the evidence both defendant and the State prepared reports of the proceedings as authorized under Supreme Court Rule 323(c), formerly Rule 36-1(c) (Ill. Rev. Stat. 1967, ch. 110A, par. 323(c),) and the State's report was accepted as the accurate record. That limited record included pleadings, orders and summaries of evidence relating to matters raised in the post-trial motion, and showed that defendant was advised of and waived his right to a jury trial, but did not show whether he was advised of and waived his right to counsel.
The appellate court, in affirming the conviction, held that in a misdemeanor case the magistrate has no duty to advise defendant of a right to counsel under the statutes and rules of the Illinois Supreme Court, and that there was no denial of due process here.
On this appeal defendant reasserts that he was deprived of statutory rights and due process of law because the record does not show his express waiver of counsel. He calls attention to the conflicting decisions of districts of the appellate court. The State contends that defendant waived the issue of any failure to advise him of his right to counsel by not raising that matter in his post-trial motion; that neither Illinois statutes nor constitutional concepts require the trial judge in a misdemeanor case to advise defendant of a right to counsel and an express waiver of such right; and that defendant's contention would summarily revise Supreme Court Rule 401(b).
This record establishes that defendants was not advised by the court of his right to counsel. That issue was not complained of as error in defendant's post-trial motion filed by his attorney, and is therefore waived. (People v. Touhy, 31 Ill.2d 236, 240.) Strict application of the waiver concept should be relaxed, however, because the alleged diversity of opinion among the districts of the appellate court warrants adjudication of that issue by this court.
Section 113-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 113-3(a),(b), formerly par. 730,) provides:
"(a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain the same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge.
"(b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed counsel * * *. [Alternate appointment specified.]" (Emphasis supplied.)
It is patent from the plain words of the statute that this statute envisages that there be a showing that defendant desired and requested counsel. The evidence and contentions here show no such desire or request by defendant. Therefore we perceive no violation of this provision of the Code of Criminal Procedure.
The rights delineated in the foregoing section 113-3 of the Code of Criminal Procedure are further qualified by Supreme Court Rule 401(b), formerly Rule 26(3). (Ill. Rev. Stat. 1967, ch. 110A, par. 401(b).) That rule provides: "The court shall not permit a * * * waiver of * * * counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from the proceedings had in open court at the time waiver is sought to be made * * * that the accused * * * understands he has a right to counsel, and understandingly waives that right. The inquiries of the court, and the answers of the accused to determine whether he understands his ...