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People v. Kerner

OCTOBER 14, 1975.

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

v.

DEAN KERNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jasper County; the Hon. JACK M. MICHAELREE, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Dean Kerner, was charged by information with two offenses of driving while license suspended or revoked in violation of section 6-303 of the Illinois Vehicle Code (Ill. Rev. Stat., ch. 95 1/2, par. 6-303). He was found guilty of both offenses in a bench trial on January 5, 1973, and on February 8, 1973, was sentenced to two concurrent nine-month terms of imprisonment. From these two convictions defendant brings this appeal and raises two issues: (1) whether he was denied his right to counsel; and (2) whether the sentences were excessive. No brief has been filed on behalf of the State. Because we feel this case should be reversed on the first issue raised by defendant above we find it unnecessary to discuss the sentencing issue.

On November 11, 1972, the defendant appeared before the court for arraignment. After the court explained the nature of the charges to the defendant the following colloquy occurred between the court and the defendant:

"The Court: In this situation you are entitled to be represented by an attorney throughout each stage of the proceeding. In addition, you have a right to a court appointed attorney in the event you are financially indigent and unable to provide the services of your own attorney. In addition, you are entitled to have your case continued or delayed to give you an opportunity to consult with an attorney, and finally you are entitled to have your case heard by a jury or by the court without a jury. Do you understand you have a right to be represented by a lawyer?

A. Yes.

The Court: Do you understand you have a right to a court appointed attorney in the event you do not have funds to provide the services of your own attorney?

A. Yes.

The Court: Do you understand you have a right to have your case continued or delayed to give you an opportunity to consult with an attorney?

A. Yes.

The Court: Are you prepared at this time to state whether you are guilty of these charges or do you want some time to talk to a lawyer?

A. I am ready to state."

The defendant then went on to plead not guilty to both charges. Nothing further was said as to the defendant's ability to obtain counsel or as to whether he desired the court to appoint counsel.

Later during the proceeding there was some discussion between the defendant and the court concerning the forfeiture of $200 by the defendant for his failure to appear at an earlier hearing regarding these offenses. There is no other information in the record concerning the earlier hearing or the date on which it was to have been held. However, because of his loss of the $200 the defendant expressed his feeling that "[t]hese cases really ought to be throwed out of court." The judge treated this statement as a motion to dismiss and set November 14, 1972, for a hearing on the motion. On that date the defendant appeared, without counsel, and stated his reasons in support of the motion. The motion was denied, and the case was set for trial on December 15, 1972. No mention of counsel was made during the November 14, 1972, hearing.

On December 5, 1972, pursuant to the motion of the State's Attorney, the trial date was changed from December 15, 1972, to December 26, 1972, at 10 a.m. On the later date the cause was called for trial at 10 a.m. as scheduled. The defendant failed to appear and as a result, the trial judge ordered his bond forfeited. However, at 10:40 a.m. ...


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