APPEAL from the Circuit Court of Adams County; the Hon. GUY R.
WILLIAMS, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
On May 12, 1976, defendant Larry Toolate was convicted of burglary by an Adams County jury and was sentenced to 3 to 9 years' imprisonment.
Defendant, along with Michael Ruschmyer, was charged with burglary by Adams County information No. 75-CF-151 which was filed December 3, 1975. Information No. 75-CF-153 was then filed charging defendant alone with another burglary. On December 3, 1975, John T. Inghram IV was appointed counsel to represent defendant and Ruschmyer. At the February 9, 1976, arraignment, Mr. Inghram failed to appear, being engaged in another trial and the trial court suggested that the arraignment be continued until February 17, 1976.
On February 17, 1976, Mr. Inghram moved to withdraw as counsel for Larry Toolate, maintaining a conflict of interest arose over his representation of both defendants. The motion was allowed, and on that date, Andrew C. Schnack III was appointed to represent defendant. Mr. Inghram continued to represent Mr. Ruschmyer.
Defendant was then arraigned on February 24, 1976. He entered not guilty pleas as to both charges. At that point, the following colloquy ensued:
"THE COURT: Let the record show that each of these defendants in each cause have entered their plea of not guilty. Let the record show that each of these causes should be set for jury trial. Gentlemen, it would be my intention to set them on the May jury calendar.
MR. INGHRAM: I would prefer, on behalf of Mr. Rushmeyer, that it be set for May, your Honor.
MR. SCHNACK: Your Honor, I had some discussion with the State's Attorney and with Mr. Toolate. At the present time, the State's Attorney, I believe, has suggested March 8, as the trial date. I have talked with Mr. Inghram who was previously the attorney of record and he indicates to me that extensive discovery has been done and he is further willing to fill me in and help me out with any discovery that would be necessary. I have talked this over with Mr. Toolate. As far as I know, it is agreeable with him, however, I think I would like for him to indicate this into the record. As far as I am concerned, it would be somewhat an added burden, however, I feel I could be ready on March 8th's jury docket * * *.
THE COURT: May I suggest that if that is your wish and of the defendant, Toolate, that cause no. 75-CF-153 be set in March, rather than 75-CF-151 and it would be set in May. We wouldn't want to try both cases at the same time and that would facilitate.
MR. SCHNACK: That is true. Which residence is that?
THE COURT: Perry Livingston.
MR. INGHRAM: May we have just a moment ...