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People v. Harston

NOVEMBER 8, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

O.Z. HARSTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Jury verdicts found defendant guilty of attempt armed robbery and aggravated battery. While many issues are raised on appeal, we find it necessary to consider only whether denial of defendant's motion for a substitution of judge amounted to reversible error.

On February 9, 1972, defendant was arraigned without counsel. The court, on behalf of defendant, entered pleas of not guilty to the charges, appointed the public defender and stated, "Your case will be set for March 13th for disposition. Do you understand that?" Defendant responded, "Yes, sir, Judge." On March 7, 1972, defense attorney filed a discovery motion with the clerk of the court.

On March 13, 1972, defendant appeared before the same judge with counsel who orally moved for a substitution of judge and a continuance of the case to permit further investigation. Counsel related that he realized the motion for substitution was untimely for not being made within 10 days of arraignment and, consequently, would not be granted as a matter of right. Thereafter, the following colloquy occurred:

"The Court: I had denied one this morning.

Mr. Morelli: Yes, sir. I don't know if the circumstances on that one were the same as this.

But Mr. Harston —

The Court: Well, they waited until Friday to file the motion.

Mr. Morelli: And I, quite frankly, haven't filed one because I didn't intend to until I spoke with Mr. Harston this morning.

But he feels, having been sentenced by your Honor on a previous occasion and that your Honor gave him a rather strong admonition at that time —

The Court: Put him on probation.

Mr. Morelli: No, sir. You weren't put on —

The Defendant: No, sir.

Mr. Morelli: No. And as result of that, he is reluctant to have your Honor hear this case — ...


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