APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, James A. Lewis, was indicted and charged with four counts of armed robbery. In a trial without a jury he was found guilty on three counts of armed robbery and was sentenced to a minimum of four and a maximum of ten years on each count to be served concurrently in the Illinois State Penitentiary.
The defendant, after timely notice of appeal, filed a first brief in which he contended that his conviction should be reversed because the trial judge did not advise him of his right to a jury trial and the record did not show that he knowingly and understandingly waived that right. Subsequently another brief was filed, pursuant to motion, and the contentions raised by defendant therein are that: (1) he was denied effective assistance of counsel; (2) he was denied equal protection of the law in that because of his indigency he was forced to choose between his right to have effective representation of counsel and his statutory right to be brought to trial within 120 days; and (3) the armed robbery arose out of one transaction and he therefore should not have been convicted and sentenced on three separate counts.
The evidence shows that on July 6, 1971, at about 11:00 A.M. three men, one identified as the defendant, entered Rosie's Sunstrip Lounge, 3302 East 92nd Street in Chicago. They were armed with a shotgun and a revolver. They forced an employee, Theresa Jackson, to open the cash register at gunpoint and scooped out the cash. Defendant also took several bottles of whiskey. The trio then proceeded to force Boyd Mathews and Sylvester Triplett, patrons of the tavern, to relinquish their money. The defendant was arrested on November 7, 1971. A preliminary hearing was held on December 8, 1971, and the court made a finding of probable cause and defendant was held over to the grand jury. During the preliminary hearing the defendant was represented by the public defender, but only for purposes of that proceeding. On February 24, 1972, the defendant was indicted and charged with the four counts of armed robbery. He was arraigned the following day and the public defender was appointed to represent him.
The cause was first set for trial on March 2, 1972. On that date, the Assistant Public Defender informed the court and the defendant that he was not ready to go to trial, having only become aware of the case the previous Friday, February 25, 1972, the 110th day of defendant's incarceration. He further related that he had only the previous day become aware of the fact that defendant's 120-day term would expire on March 6th and defendant would have to be discharged from custody unless defendant extended the time by occasioning delay in the proceedings. Pursuant to Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a), "[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *."
The Public Defender stated that despite his admonition to the defendant that he was not fully prepared and going to trial at that time would be "precarious," the defendant still persisted in answering ready for trial, apparently to preserve the imminency of his discharge under the 120-day rule. The court then addressed the defendant as follows:
"THE COURT: You have heard your counsel state that he advised you not to proceed in this matter until he has had an opportunity to become familiar with the facts and familiarize himself with the case so he can adequately and properly defend you.
You do know, of course, that you have an imminent term problem that expires unless you break it on March the 6th.
In spite of what Mr. Jacobs [the assistant public defender] has stated to you, do you persist in demanding that he answer ready for trial on your behalf?
DEFENDANT: Yes, sir, I am ready for trial.
THE COURT: And you are insisting that Mr. Jacobs answer ready for trial in spite of the fact that he advises you that because of the fact that this matter just came to this court and he has just been appointed to represent you and has not had time to adequately and properly evaluate, prepare the case and find out the facts, you still wish to demand trial and answer ready for trial today?
DEFENDANT: Yes, sir, I do."
The Assistant Public Defender later asked leave to withdraw as counsel because of his unpreparedness and his motion was denied.
The record further reveals that defendant was then admonished of his constitutional right to a jury trial. He decided to waive a trial by jury and executed a waiver. His counsel asked for a copy of the preliminary hearing and was given it, as well as the grand jury testimony. The cause was recessed to give defense counsel an opportunity to talk to the State witnesses who were available. He also advised the court that Neal Walter, the Assistant Public Defender who represented the defendant at the preliminary hearing was assisting him. He then presented two written petitions. One was headed "motion to quash arrest and suppress evidence," the other "motion to suppress the identification testimony of a witness." Each petition was signed by ...