APPEAL from the Circuit Court of Clay County; the Hon. DANIEL
H. DAILEY, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, William H. Wood, was convicted of arson following a jury trial in the circuit court of Clay County. He was sentenced to five years' imprisonment. The sole question on appeal is whether he was improperly denied appointed counsel at trial.
Defendant, pro se at trial, presented the testimony of several alibi witnesses that he was playing cards at the time of the offense. The State relied primarily on the testimony of two accomplices, both of whom had pleaded guilty to the same offense. Defendant did not testify at trial.
Defendant was initially charged with arson and three counts of theft. Bail was set at $40,000, and defendant was released upon his deposit of $4000. Defendant's retained attorneys thereafter moved to withdraw from the case, citing defendant's failure and refusal to pay them. These motions were granted at a March 23, 1977, hearing at which defendant informed the court (Judge Michaelree) that he would hire other counsel and expected to pay them from the proceeds of property he had listed for sale. Defendant was subsequently charged with "failure to appear," for which bail was set at $20,000. On June 24, 1977, defendant deposited $2000 and was again released. On June 27 he appeared before Judge Michaelree and requested the public defender be assigned to his case. In his June 27 affidavit of assets and liabilities he stated that he was divorced and had three children, that he was an unemployed ironworker, and that he had no present income. He stated that he had no home or dwelling, real property, car, or securities, and listed his sole asset as $150 cash on hand. He listed liabilities of $33,000 owed to banks in Centralia, Monticello, and Altamont and stated he was released on bail of "approximately $21,000 to be assigned to lender." Public Defender Michael Dunston was assigned to the case.
On July 6, 1977, defendant filed his "assignment of refund of bail deposit," reciting that he had no interest in that deposit and requesting that the money be returned to his ex-wife.
On November 28, 1977, Public Defender Michael Dunston filed his motion to withdraw from defendant's case, citing as grounds, (1) Dunston's caseload and (2) that defendant was not indigent in view of the fact that defendant had $14,400 in cash deposited for bail in six southern Illinois counties. The motion was granted by Judge Wineland, who ordered defendant to appear on December 12 to make application for appointed counsel if he could show his inability to hire private counsel.
Defendant's December 12, 1977, request for appointed counsel was heard by Judge Spitler. On that date defendant filled out a new affidavit of assets and liabilities, in which he stated he had no income or real property and no car. He listed as assets $500 in clothing and $3 cash. He listed $35,000 in debts owed to banks in Altamont and Centralia, and stated that he was released on $15,000 "borrowed" bail.
In response to questioning by the state's attorney, defendant stated he lived by borrowing from friends and had no permanent address. He maintained that he had agreed pursuant to his divorce to give his ex-wife certain real estate. Further, he had conveyed other real estate to one D. Hart for $10,000 to $12,000 and paid the proceeds to his ex-wife. His bail had been borrowed from his ex-wife, who had borrowed it from D. Hart and friends and relatives. Defendant knew of no court order requiring the conveyances to his ex-wife, maintaining he had made them pursuant to their verbal agreement. The court observed that the divorce decree recited that the matter of division of property was reserved. Defendant further stated that while some conveyances predated his bail deposit in the instant case, others did not. The state's attorney argued that voluntary transfers had been made to obtain appointed counsel. Judge Spitler, noting the divorce decree provided for no payments whatsoever, refused to appoint defense counsel.
On March 28, 1978, another hearing on defendant's request for appointed counsel was held before Judge Wineland. There the state's attorney asserted that on April 1, 1977, defendant had conveyed certain real estate to Keith and Kevin Clark of Centralia for $16,000. Defendant responded that the proceeds of that sale were committed to his ex-wife, who had received the proceeds after paying off a "considerable" mortgage on the same property. The state's attorney called attention to the lack of a court order for division or conveyance of property and stated his further "understanding" that defendant had conveyed 42 acres to her without court order. Defendant responded that there was no law prohibiting him from giving property to his children and ex-wife. At that point the court had defendant sworn as a witness.
Defendant testified that after his divorce he conveyed real estate to the Clarks for $16,000. He conveyed 40 acres to his ex-wife, which property he had owned as a joint tenant with her, for no consideration, but she had assumed a $37,000 debt secured by that property. The two acres in Flora which he had conveyed to her were worth more than $8000. He owed a Centralia bank $16,000 to $17,000, secured by two trucks (neither of which was late-model) and his life insurance worth $5000. He owed a Monticello bank $1200. He owed an Altamont bank $4000, plus another $37,000 debt, the one his ex-wife had assumed. He had sold D. Hart certain real estate for $11,000 to $12,000 and given his ex-wife and children the proceeds, though no court order required him to do so. He maintained he had agreed to give her "everything" and had done so. He noted that the public defender in Marion County had been appointed to represent him and that it would take a "millionaire" to defend all the charges against him.
Judge Wineland noted defendant had deposited considerable cash bond in the circuit courts> of various counties and had employed a Piatt County attorney on a fee basis. He noted defendant had apparently conveyed all of his assets to his ex-wife voluntarily and that she had used some of the proceeds to provide his bail. He characterized defendant's affidavits of assets and liabilities as incomplete. Appointed counsel was denied. On the following day defendant filed his notice of appeal.
On June 26, 1978, another hearing was held regarding defendant's request for counsel, Judge Wineland presiding. Defendant urged he had been denied the public defender because he was at liberty on bail. The court responded that appointed counsel had been denied because of the conveyances to his ex-wife. Judge Wineland denied defendant's request by written order filed July 7, 1978, noting as grounds: (1) defendant had $16,000 posted for bail in various counties, (2) after the instant charges were filed, defendant conveyed various realty without consideration or court order, and (3) defendant failed to disclose his assets fully.
Meanwhile, defendant's appeal to this court was dismissed for lack of an appealable order.
On August 7, 1978, at a hearing, Judge Slater again denied defendant's request for appointed counsel after being apprised that defendant ...