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People v. Kester

OPINION FILED MARCH 23, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JAMES STEPHEN KESTER, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County; the Hon. Richard Eagleton, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

The defendant, James Stephen Kester, entered negotiated pleas of guilty in Peoria County circuit court to indictments charging him with burglary and unlawful delivery of cannabis. The trial court entered judgment on the pleas, sentenced him to concurrent penitentiary terms of 2 to 10 years and 1 to 3 years, respectively, and imposed a $250 fine. On appeal by defendant from the burglary conviction, a divided appellate court reversed and remanded on the grounds that the defendant had been prejudiced by a conflict of interest resulting from the fact that the court-appointed assistant public defender who represented him at the time the pleas of guilty were accepted had appeared earlier in the same criminal proceeding on behalf of the People as an assistant State's Attorney. (People v. Kester (1975), 33 Ill. App.3d 262.) We granted the People's petition for leave to appeal.

On January 10, 1973, the Peoria County grand jury returned an indictment charging the defendant with burglary. An assistant State's Attorney subsequently made three court appearances on behalf of the People on the burglary charge. On January 16, 1973, he filed a motion for discovery and also moved for the issuance of a bench warrant and for an order forfeiting defendant's bond as a consequence of defendant's failure to appear for arraignment on that date. The motions were granted. He next appeared on January 26, when he renewed his motion for the issuance of a bench warrant and entry of an order forfeiting bond when defendant again failed to appear for arraignment. The motions were again granted, and defendant was subsequently arrested. On April 17, 1973, the assistant State's Attorney was present in court on behalf of the People when the defendant was furnished with a copy of the indictment. An order was entered on that date appointing the public defender of Peoria County to represent the defendant and setting a date for the filing of any motions preliminary to a plea. Defendant subsequently entered a not guilty plea, and shortly thereafter, the assistant left the State's Attorney's office to accept a position as an assistant public defender, where he was given the duty of representing defendant in the pending burglary case.

On June 15 the defendant appeared in court for arraignment on two unrelated indictments charging him with unlawful delivery of cannabis. During the arraignment proceedings, the defendant stated that he desired counsel other than the public defender. When the defendant admitted he had no specific basis for such a request, the court proceeded to appoint the public defender. The defendant then indicated to the court that he wanted to file motions in the pending burglary case. The following colloquy between him and the trial judge occurred:

"THE COURT: Do you have them with you?

THE DEFENDANT: Yes.

THE COURT: The Clerk can verify them. What case is that?

* * *

THE COURT: You are scheduled for trial on June 25th on that?

THE DEFENDANT: Yes.

THE COURT: Which assistant is handling that case?

THE DEFENDANT: Public Defender Riddle.

THE COURT: Has Mr. Riddle had any contact or been in your ...


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