APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
The defendant, Eddie Murrell, was arrested in the early morning hours of February 8, 1973, and charged with the offenses of theft of property valued at less than $150 and battery that had occurred shortly before the arrest. Later that same day, February 8, 1973, defendant was tried in the Circuit Court of Cook County, before the Honorable Lawrence I. Genesen. Defendant was found guilty of theft and battery against Isaiah Brewer and not guilty on the same charges against Robert Osburn. Following a hearing in aggravation and mitigation, defendant was sentenced to probation for 1 year, and a term of periodic imprisonment for 3 weekends. A notice of appeal from the conviction was filed immediately after the trial on February 8, 1973. On the following day, February 9, 1973, the State moved to vacate the sentence imposed, offering evidence that, contrary to the State's presentation the day before, the defendant had a prior record of criminal conviction and asking that a new sentence be imposed. The court granted this motion the same day that it was filed and sentenced the defendant to the Illinois State Farm at Vandalia for a term of 7 months.
Defendant brings this appeal contending that:
(1) The record does not reflect a knowing and intelligent waiver of his right to trial by jury;
(2) He was not proven guilty beyond a reasonable doubt;
(3) It was error for the trial court to vacate the original sentence and impose a new sentence; and
(4) It was error to sentence the defendant for two offenses arising out of the same transaction.
It is necessary for this court to consider only defendant's first contention; that the record does not reflect a knowing and intelligent waiver of his right to a trial by jury. The record on appeal contains the following discussion between the trial judge, the Assistant State's Attorney, and the Assistant Public Defender appointed to represent defendant:
"THE COURT: Let's get on with it. Have you filed your charges now?
MR. DeJOHN: [Assistant State's Attorney]: Yes Judge, we have four reduced charges in total.
THE COURT: Let me have them. Kidd (phonetic) is charged with battery on the person of Robert Osburn. Is that the only charge against Kidd?
MR. PTACEK [Assistant Public Defender]: No, your Honor.
MR. DeJOHN: The battery charge
MR. PTACEK: All defendants plead not guilty, waive trial by ...