APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendants, David Barton Bassett and Dennis Earl Beebe, waived indictment and pled guilty to an information which charged them and three others with the offense of burglary and were each sentenced to a term of 2-6 years in the Illinois State Penitentiary. In their consolidated appeal the defendants contend (1) that the trial court erred in failing to advise the defendants of the nature of the charge and of their right of indictment in accordance with Supreme Court Rule 401(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 401(b)) when defendants waived indictment; (2) that the trial court erred in failing to inform the defendants of the nature of the charge in accordance with Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402 (a)(1)) when the defendants pled guilty; and, (3) that the trial court erred in failing to vacate the guilty pleas and sua sponte order a competency hearing to determine the competency of the defendants to enter the pleas when the trial court was presented with the defendants' presentence psychiatric reports.
The docket entries in the cases against both defendants state that at their arraignment on January 24, 1973, the nature of the charge of burglary was explained to each of them. On February 2, 1973, the public defender of Winnebago County, representing the defendants and the three co-defendants, advised the court that the defendants "would like to waive prosecution by Indictment at this time." The following colloquy ensued:
"THE COURT: If you don't waive the Grand Jury then when the Grand Jury meets it meets periodically the State's Attorney would present whatever evidence he has against you, and if the Grand Jury, or a majority of them, were of the opinion that there is probable cause to hold you for trial, they would return what is known as a true bill or Indictment and you would be arraigned and tried on the Indictment.
Where you waive the intervention of the Grand Jury, the State's Attorney would file what is called an Information against you, which would charge that on the 22nd day of January, 1973, in the County of Winnebago and State of Illinois, David B. Bassett, Gary Lee Pounders, Gary Hall a/k/a Gary Hull, Dennis Earl Beebe and Raymond Lee Gargani committed the offense of burglary, in that they, without authority, knowingly entered into the building of Wayne H. Erickson, lessee, doing business as Wayne's Western Auto, located at 3134 Eleventh Street, Rockford, Illinois, with intent to commit therein a theft or felony, in violation of Paragraph 19-1, Chapter 38 of the Illinois Revised Statutes.
Now burglary is an offense, under the new Criminal Code which went into effect January 1, 1973, which is called a Class II felony, and it provides that in case of conviction that you might be imprisoned in the penitentiary for a period of years not less than one year nor more than twenty years, or any indeterminate sentence between one and twenty years, any combination of years, not less than the minimum, plus three years parole or a fine not to exceed $10,000.00 or both fine and imprisonment.
After and if the Indictment would be returned or the Information filed, then the procedure is the same, whether it is by Indictment or Information.
Now, David Bassett, do you understand what I have just said?
THE COURT: Knowing that, you want to waive the Grand Jury.
THE COURT: Dennis Earl Beebe, do you understand what I have said.
DEFENDANT BEEBE: Yes, Your Honor.
THE COURT: And you want to waive the intervention of ...