APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Pursuant to a negotiated plea of guilty the defendant was convicted of Voluntary Manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(b)), and sentenced to 6-12 years in the penitentiary. He appeals, contending that he was not informed of the nature of the charge. A motion for summary modification of sentence has been taken with the case.
Defendant was initially tried on a two-count indictment charging Murder (Count I) and Voluntary Manslaughter (Count II). A mistrial was declared on September 24, 1971, when the jury was unable to reach a verdict. Thereafter, on November 29, 1971, a plea agreement was accepted by the court. Defendant pled guilty and Count I was dismissed. The hearing in aggravation and mitigation was waived, and defendant sentenced in accordance with the agreement.
Before accepting the plea the court first recalled that there was a language problem and inquired about arrangements for an interpreter. The public defender stated that a senior at Rockford College who was a citizen of Puerto Rico and spoke fluent English and Spanish was in court. The court then stated:
"THE COURT: * * * You are satisfied are you, that she can inform Mr. Diaz of everything that is said in Court?
MR. VELLA: Completely, Your Honor."
The court further inquired about members of defendant's family and was informed by defense counsel that defendant's wife, his sister-in-law and a friend were present, all of whom spoke both English and Spanish. The following colloquy then appears in the record:
"THE COURT: Count II charges that on May 23, 1971, Mr. Diaz committed voluntary manslaughter by shooting and killing Juan Tomyo with a gun. Do you understand the nature of that charge?
The court then informed the defendant of the minimum and maximum penalties and proceeded to inform itself of the details of the plea agreement.
After an off-the-record discussion, the prosecutor stated to the court on the record that the defendant had indicated to him that the second count of voluntary manslaughter had been struck by the court in the instruction conference in the previous trial of the case and that a jury instruction on voluntary manslaughter was given which changed the language of Count II from voluntary manslaughter,
"* * * with regard to sudden and intense passion resulting from serious provocation to voluntary manslaughter with regard to the committing of said act when the defendant, at the time of the killing, believed the circumstances to be such that if they existed would justify or exonerate the killing."
"THE COURT: Unreasonable ...