APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Following a bench trial, the defendant was convicted of burglary and misdemeanor theft, and was, on the burglary conviction, sentenced to 5 to 15 years' imprisonment. On appeal, he contends (1) that he was entitled to his discharge under the Illinois speedy trial provision; (2) that he was denied the effective assistance of counsel by the failure of defense counsel to present a motion for such a discharge; and (3) that, even though he was sentenced only on the burglary conviction and not on the theft conviction, the latter should be set aside because both charges were based on the same course of conduct.
We disagree on his first and second contentions but agree with his third. We therefore affirm the judgment as entered on the burglary conviction, but reverse and vacate the conviction for misdemeanor theft.
On March 26, 1973, the defendant was served with an arrest warrant and complaint, alleging that he had committed the offense of burglary on February 28, 1973, in that he knowingly without authority entered the apartment of Bruce Johnson in Hinsdale, Illinois, with the intent to commit therein a theft. On this charge, the defendant was granted a personal recognizance bond on April 27, 1973. On July 26, 1973, the defendant was indicted for the offenses of burglary and theft arising from the incident on February 28, 1973.
Meanwhile, the defendant was charged with several other unrelated offenses. The record fails to establish when these unrelated charges were brought against the defendant. Nor does the record establish whether the defendant was denied bail on all of these charges. However, the defendant asserted at a pretrial hearing that he had been incarcerated since March 1, 1973. Also in this interim, the defendant was incarcerated awaiting resentencing on a 1972 felony theft conviction, which had been appealed and affirmed as modified. (See People v. Gibson (1973), 11 Ill. App.3d 875, 297 N.E.2d 31.) On July 24, 1973, the defendant was resentenced on the 1972 felony theft conviction pursuant to this court's opinion.
On August 2, 1973, the defendant was arraigned on the indictment charging burglary and theft and the public defender was appointed to represent the defendant. At this hearing, the public defender requested a substitution of judges, which was granted. On August 15, 1973, defense counsel was granted a continuance to August 28, 1973.
At the proceedings on August 28, 1973, defense counsel informed the court that the defendant claimed to have been incarcerated on other charges since March, 1973, and made a demand for trial on the charges of burglary and theft arising from the incident on February 28, 1973, for which the defendant had been granted bail. Pursuant to this demand for trial, the case was set for trial to commence on October 15, 1973. No objection was made to the setting of the case for trial, and no motion for a discharge under the Illinois speedy trial provision (Ill. Rev. Stat. 1973, ch. 38, par. 103-5) was presented.
On October 15, 1973, the date assigned for trial, the defendant presented a motion to dismiss his court-appointed counsel and requested the appointment of new counsel. The defendant asserted, in essence, that he believed there was a lack of communication between defense counsel and himself. A full inquiry, during which many misunderstandings of the defendant were apparently alleviated, was conducted. Because of the untimeliness of defendant's motion presented on the day trial was to commence and the indication that personal conflict between counsel and defendant was minimal, the court denied the defendant's motion to dismiss court-appointed counsel.
On the following day, the defendant presented a written motion requesting another substitution of judges, which the court denied. In response to the court's inquiry concerning why this motion had not been made earlier, the defendant stated, "I didn't expect this one to go to trial." Next the defendant presented written notification to the court, whereby he ordered his appointed counsel to refrain from taking any action on his behalf and to "remain mute" throughout the trial. It was agreed that the defendant's appointed counsel remain with the defendant throughout the trial to advise him.
After all the evidence had been presented, the court found the defendant guilty of burglary and misdemeanor theft as charged in the indictment, and entered judgment accordingly. A post-trial motion was filed, which alleged that the defendant was denied his right to counsel, but failed to assert that the defendant was denied a speedy trial, although this issue was argued at the hearing on the post-trial motion. This motion was denied, and subsequently, the court sentenced the defendant to a term of 5 to 15 years' imprisonment on the burglary conviction to run concurrently with the sentence on the 1972 felony theft conviction. No sentence was imposed on the misdemeanor theft conviction.
The defendant contends that he was entitled to discharge under the Illinois speedy trial provision (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). The defendant asserts that although he was granted a personal recognizance bond on this charge, he was in fact incarcerated for other unrelated charges. Thus, the defendant contends that he was denied a speedy trial since he was not brought to trial within 120 days from March 26, 1973, the date he was served with the complaint and arrest warrant for this charge.
• 1 It is well established that a motion for discharge asserting a denial of a speedy trial must be made before conviction in the court in which the indictment is pending. (People v. Browry (1972), 8 Ill. App.3d 599, 602, 290 N.E.2d 650, 653; People v. Kuczynski (1965), 33 Ill.2d 412, 413, 211 N.E.2d 687; People v. Reader (1962), 26 Ill.2d 210, 214, 186 N.E.2d 298; People v. Stahl (1962), 26 Ill.2d 403, 404, 405, 186 N.E.2d 349; People v. Walker (1958), 13 Ill.2d 232, 235, 148 N.E.2d 754; People v. House (1957), 10 Ill.2d 556, 558, 141 N.E.2d 12; People v. Brame (1955), 6 Ill.2d 412, 413, 128 N.E.2d 911; People v. Morris (1954), 3 Ill.2d 437, 442, 121 N.E.2d 810; People v. Sweeney (1951), 409 Ill. 223, 225, 99 N.E.2d 143.) In the case at bar, no motion for a discharge under the Illinois speedy trial provision was presented before conviction. It was not until after the court had entered judgment upon its finding of guilty that the issue was raised during oral argument on the post-trial motion. In People v. Walker (1958), 13 Ill.2d 232, 235, 148 N.E.2d 754, wherein a motion for discharge under the speedy trial provision was made for the first time in a post-trial motion, the court stated that the right to a speedy trial can be waived and is waived where the defendant fails to raise the question prior to conviction. Thus, in the case at bar, the defendant waived his right to raise this claim.
Moreover, section 114-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-1) provides:
"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or ...