APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a denial of post-conviction relief pursuant to section 122 of the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1975, ch. 38, pars. 122-1 through 122-7.) He contends that his theft conviction in Cook County violated his constitutional rights in that: (1) he was denied his right to counsel; (2) his plea of guilty was induced by a promise which was not kept; and (3) the transcript of the proceedings in which his guilty plea was accepted does not affirmatively show a voluntary waiver of his rights or a proper admonishment by the trial court as required by Supreme Court Rule 402. Ill. Rev. Stat. 1975, ch. 110A, par. 402.
We reverse and remand. The pertinent facts are as follows.
On August 26, 1976, while on probation in Du Page County, defendant appeared before Judge Robert Meier III in Cook County and pleaded guilty to a charge of theft of three hypodermic syringes from Michael Reese Hospital in violation of section 16-1(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a).) He was fined $45 and $5 for court costs. The entire official transcript of the hearing contains only the following proceedings:
"(OFF THE RECORD DISCUSSION).
THE COURT: Thomas Cangelosi, C-A-N-G-E-L-O-S-I. Plea of guilty. Finding of guilty. Forty-five and five."
The record does not contain any reference to admonishments or waivers of admonishments of any kind. However, at the post-conviction hearing it was stipulated that defendant was not represented by counsel before Judge Meier.
Thereafter, on September 27, 1976, the defendant appeared in Du Page County for a probation revocation hearing. He had there been placed on probation in 1975 for convictions of burglary and attempt burglary. The violation of probation alleged was his arrest and being charged with the theft of syringes in Cook County. Although the court was aware of the guilty plea entered in Cook County, defendant was fully admonished as to his options. The record shows the following dialogue:
"THE COURT: You understand you have a right to the full hearing right here in the courtroom now?
MR. CANGELOSI: Yes, your Honor.
THE COURT: Do you understand if you are going to stand here and tell me you did violate your probation by committing an offense, a criminal offense for which you pled guilty, that that does leave me no alternative but to find you guilty of violating your probation, and I decide what kind of sentence to give you?
The court then asked the defendant if he was guilty of the theft in Cook County, and the following exchange took place:
"MR. CANGELOSI: Yes, sir. I pleaded guilty to it. I didn't take them, though.
THE COURT: You see, there is going to be our problem. If you are going to say you pleaded guilty but you didn't take the syringe needles, I have to have evidence before I can find you guilty of violating probation. I have to have evidence.
THE COURT: The only way I can accept a plea is if you tell me yes, Judge, I violated my probation and tell me you pled guilty or I am guilty of taking the needles and by telling me you actually did take them. That is the only way I can accept your guilty plea to this.
I am not going to let you tell me you pled guilty, but I really didn't do it. Then I have to have a full hearing to decide whether you did or not. Make up your mind.
If you feel you didn't do it, then you should have the hearing. If you tell me yes, I really took those three syringe needles, then I will be willing to discuss further a plea of guilty to the charge of ...