APPEAL from the Circuit Court of Johnson County; the Hon.
ROBERT B. PORTER, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The defendant-appellant, Albert Alan Cody, pled guilty to the crime of unlawful possession of more than 25 grams of a substance containing barbital, in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat., ch. 56 1/2, § 1402(b)), after a negotiated plea. Defendant was sentenced to serve 1 to 6 years in the penitentiary concurrent with a sentence which defendant was presently serving, and he now contends that the trial court of Johnson County committed reversible error by failing to determine whether there was a factual basis for his plea prior to entering final judgment on his plea as required by Supreme Court Rule 402(c).
Pursuant to the negotiated plea, the charges brought in count II and count III of the information were dismissed by the State. Count I of the information, to which the defendant pled guilty pursuant to the negotiated plea, stated as follows:
"The State's Attorney of said county charges: Count I that on September 25, 1973, in Johnson County, Albert Alan Cody committed the offense of unlawful possession of controlled substance in that the said defendant did knowingly and unlawfully have in his possession more than 25 grams of a substance containing Barbital, otherwise than authorized in the Controlled Substance Act, in violation of Para. 1402B, Chap. 56 1/2, Ill. Rev. Statutes."
The record in this case reflects that the following exchange took place between the trial court, the State's Attorney, the defendant, and the defendant's attorney:
"The Court: The Court accepts your plea. Mrs. Webb, is there any factual basis for this plea?
Mrs. Webb: Yes, sir. Your Honor, if witnesses were called, they would testify that on September 25, 1973, in Johnson County, Albert Alan Cody committed the offense of unlawful possession of controlled substance in that said defendant was apprehended having knowingly and unlawfully in his possession more than 25 grams of a substance containing Barbital, otherwise than is authorized by the Controlled Substance Act.
The Court: You have heard this lady state what her testimony would be, in fact, is that true?
The Court: Mr. Defense Counsel, do you stipulate there is a factual basis for this plea?
Mr. Hubbler: Yes, on the strength of the defendant's statement to the court.
The Court: Let the record show there is a factual basis for this plea * * *."
The State's Attorney, in answer to that trial court's question recited almost verbatim the charge set forth in count I of the information, prefacing such recitation with the phrase, "* * * if witnesses were called, they would testify that," then appears the recitation.
• 1 In previous cases, the courts have attempted to eliminate what appears to be some confusion between the determination of the "factual basis" of the plea (required by Supreme Court Rule 402(c)) and the determination of whether the defendant understands "the nature of the charge" (required by Supreme Court Rule 402(a)(1)). These two separate requirements have ...