Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Judgment affirmed.
PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
The defendant entered a plea of guilty to the offense of aggravated incest. Upon denial of his motion for probation, he was sentenced to a term of from 5 to 15 years in the penitentiary.
On appeal it is contended that his waiver of indictment was void; that he was not properly admonished by the court prior to the acceptance of his plea of guilty; and that the court abused its discretion by not allowing the motion for probation and by imposing an excessive sentence.
The record discloses that a criminal complaint, signed by the defendant's wife, charged him with aggravated incest in that he knowingly had sexual intercourse with his five-year-old stepdaughter. Upon being returned to this jurisdiction from Arizona, he voluntarily gave a written confession. Thereafter, a preliminary hearing was had, wherein the court explained the nature of the charge and defendant's right to counsel. At the same time, an indigency hearing was had, the public defender was appointed, bond was set and the hearing was continued. Upon resuming the hearing, probable cause was found and the defendant was bound over to the grand jury.
On January 5, 1968, prior to any grand jury proceedings, the defendant, his counsel and the State appeared before the general division of the trial court. The State requested leave to file an information and the following appears from the record:
THE COURT: "Do you know what it means to waive the intervention of the Grand Jury?"
THE DEFENDANT: "Yes. Mr. McNamara (the Public Defender) explained it to me."
THE COURT: "I will go over it again. If you don't waive the intervention of the Grand Jury, then when the Grand Jury meets, the State's Attorney produces whatever evidence he has against you. And if the Grand Jury are of the opinion there is probable grounds to hold you for trial, then you would be indicted and arraigned and tried under the Indictment.
"Where you waive the intervention of the Grand Jury, then in this case you would be charged with aggravated incest, which is a crime which may be punishable by a term of not less than two or more than twenty years in the penitentiary, or any combination of years not less than the minimum or more than the maximum.
"Now, knowing that, do you wish to waive the intervention of the Grand Jury?"
THE COURT: "Let the record show that the defendant has been advised of his rights and the nature of the charge against him. He persists in his waiver of the Grand Jury.
"Leave given to file the Information. . . ."
Thereafter, leave was granted the public defender to withdraw from the case and present counsel was appointed. On April 30, 1968, the following proceedings were had:
THE COURT: "What is your Motion today?"
MR. SNIVELY: "I was appointed to represent the defendant, Your Honor, and I now appear before you and ask leave to withdraw a plea of not ...