APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendant, Clent Jordan, was charged by indictment with the crime of armed robbery, the offense allegedly having been committed on July 9, 1969. The defendant offered a plea of guilty to the court at a hearing held on December 11, 1969. The court accepted the plea, entered judgment thereon and sentenced him to the Illinois State Penitentiary for the term of from five to ten years.
At the time of the guilty plea, the defendant was given the following admonition:
"Well, I am quite sure your attorney, Mr. Hoban, has clearly and in detail informed you as to your rights in this matter, and the possible consequences of your plea of guilty, but it is also the duty of this Court at this time to inform you that under the Constitution and Laws of the State of Illinois, you are entitled to trial by jury, to representation by counsel, to be confronted by witnesses who testify against you, and that you cannot be found guilty until you have been so found by the jury of twelve jurors residing in this County. You must also understand on your plea of guilty the Court can adjudge you guilty of the crime of Armed Robbery as alleged in this indictment, and could sentence you to an indeterminate term in the Illinois State Penitentiary, of not less than one year or for as many more years as the Court may see fit to impose upon you, the Court setting the minimum and maximum term of such sentence; do you understand that?"
The defendant urges that a plea of guilty can only be entered after the defendant has been advised by the court of his rights and consequences of his plea. It is the defendant's contention that by incorrectly stating the minimum sentence that can be imposed the court has failed to adequately advise the defendant of the consequences of the guilty plea. By amendment effective August 3, 1967, the penalty for conviction of armed robbery provides for a minimum sentence of two years and not one. Chapter 38, Section 18-2(6), Illinois Revised Statutes.
The required procedure at the time of the defendant's guilty plea was set forth in Chapter 38, Section 115-2 of the Criminal Code.
"(a) Before or during a trial a plea of guilty may be accepted when:
1) The defendant enters a plea of guilty in the court.
2) The court has informed the defendant of the consequences of his plea and the maximum penalty provided by law which may be imposed upon acceptance of such plea." (Emphasis ours.)
The procedure in effect at the time of these proceedings was stated in Rule 401(b) of the Supreme Court: *fn1
"(b) Procedure on Plea or Waiver.
The court shall not permit a plea of guilty 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 the waiver is sought to be made or plea of guilty entered or both as the case may be, that the accused understands the nature of the charge against him, and the consequences thereof if found guilty. The inquiries of the court, and the answers of the accused to determine whether he understands his rights and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by Law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case."
We must examine whether the defendant had a full comprehension of the consequences of his pleading guilty. In open court, before the plea was accepted, the defendant's attorney stated "Heretofore he (the defendant) has entered a plea of not guilty to the charge of Armed Robbery. I have discussed this matter with him, ...