APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. JUSTICE CULBERTSON DELIVERED THE OPINION OF THE COURT:
Upon motion of the People, the circuit court of St. Clair County dismissed a post-conviction petition filed by Alvin W. Moone, and he has appealed to this court.
Moone was sentenced to imprisonment in the penitentiary for not less than 15 nor more than 25 years upon his plea of guilty to a charge of burglary. His post-conviction petition raises questions going to the integrity of that plea. Substantially the same questions were raised upon appeal from the judgment of conviction to the Appellate Court for the Fifth District (58 Ill. App.2d 139), but the defendant's appointed attorney was permitted to withdraw after filing the record.
The problems in this case arise from the circumstances under which the defendant's plea of guilty was accepted. He had been indicted for burglary on June 14, 1963. He was admitted to bail, and did not appear when the case was called for trial on July 21, 1963. He was subsequently apprehended in Missouri and extradited. His case was again called for trial on November 13, 1963, but was continued to January 6, 1964, because the defendant's attorney was engaged in trial in another court.
When the case was called for trial on January 6, 1964, the defendant's attorney stated:
"Mr. RICE: Your Honor, this defendant is in jail. He has been in jail for several months. I have been his attorney up until this point. Mr. Moone wants a trial. I have counseled him and we have argued about this. I cannot see any purpose in a trial. This is a case where, in my opinion, the facts make it an impossibility to defend the case. I have advised him of that. He, at this time, advises me he wants to move the Court for a continuance and discharge me and seek other counsel. He would be the moving party on the continuance.
Mr. BANDY [Assistant State's Attorney]: Your Honor, this comes late. The People are ready.
The COURT: This comes too late. The State is prepared to try the case at this time. They have subpoenaed their witnesses.
Mr. KARNS [State's Attorney]: That's right, your Honor.
The COURT: Your motion for a continuance is denied.
Defendant ALVIN MOONE: Your Honor, I would like to know, since my lawyer isn't too much on my case, am I forced to go to court with this lawyer?
The COURT: At this stage you are. This case will be marked ready."
Thereafter, on the same day, the case was assigned to another judge. Before that judge, the following transpired:
"Mr. RICE: Your Honor, at this time the defendant would like to withdraw his plea previously entered of not guilty and enter a plea ...