APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Jr., Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The defendant, Eddie Warship, Jr., was indicted on August 10, 1970, by a Lake County grand jury for the offense of burglary "* * * in that he, knowingly and without authority entered a building located at 303 Tenth Street, Waukegan, Illinois, and owned and occupied by Kutzler Motors, Inc., an Illinois corporation, with intent to commit therein a theft, in violation of Section 19-1, Chapter 38, Illinois Revised Statutes of 1969 * * *."
On August 12, the court appointed the public defender to represent Warship and on August 20 he entered his plea of not guilty to the charges in the indictment. On September 28, the day set for trial, the defendant withdrew his previous plea and, in its stead, entered a plea of guilty. Although no written petition appears in the record, the defendant apparently asked that he be granted probation and the matter was continued for a pre-sentence report and sentencing. On December 10, the case was called up for disposition together with a petition for revocation of probation on earlier convictions of Warship for mob action and aggravated battery. The court considered the matters before it and heard evidence and arguments offered in aggravation and mitigation. At the conclusion of the hearing, the court granted the petition to revoke probation on the earlier charges, denied probation on the burglary conviction and sentenced Warship to a term of 3 to 5 years on each of the other charges and 4 to 20 years for the burglary. All sentences were to run concurrently and served in the penitentiary.
This appeal is based on the contention of the defendant that the trial court failed to follow those standards set forth in Supreme Court Rule 402 (Ill. Rev. Stat., 1969, ch. 110A, sec. 402) and required by the due process clause of the constitution of the United States before accepting his plea of guilty. Specifically, he maintains that the court did not inform him of the nature of the charge against him; the possible consequence of his plea (including the revocation of probation); and did not determine the factual basis for the plea.
Supreme Court Rule 402, adopted June 1, and effective September 1, 1970, was designed, in part, to incorporate the constitutional safeguards enunciated by the United States Supreme Court in regard to pleas of guilty into Illinois practice rules. Sections (a) (b) and (c) of the Rule provide as follows:
"In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.
(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea."
The record shows that Warship was furnished a copy of the indictment and list of witnesses prior to his appearance in court on September 28. On that ...