APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted and sentenced for armed robbery. The principal contention raised on appeal was that he was denied a fair trial and deprived of the effective assistance of counsel when his request for a continuance was refused. He also raises questions concerning an instruction to the jury, the prosecutor's argument, and the sentencing procedure. We will consider, however, only the principal contention, as it is our view that a continuance should have been granted.
The record discloses here that defendant was charged, by information, with the armed robbery of a cab driver and, at about the same time, he was indicted for another and separate armed robbery. The cases were called for trial together on several occasions and continued each time by agreement. When they were again called on May 23, 1979, the State had not yet elected on which case to proceed, and the following colloquy took place between the court, the prosecutor, two defense attorneys (public defenders), and defendant:
"THE COURT: Which of the two files had the State elected on?
MR. FAKLIS [prosecutor]: We haven't made an election, Judge.
THE COURT: All right. What I would like here is for the State to elect on one of these, and I will set it down for trial on a future date.
MR. FAKLIS: Well, we will elect on 7321. *fn1
THE COURT: The State has a right to decide on which of these cases they want to proceed on first. They tell me they want to proceed first on 7321. In that case, I will set it for trial with subpoenas for the next time around.
MR. FAKLIS: What day do you want to try it, Dennis?
THE COURT: It will be by agreement?
MR. KARNS [defense counsel]: Sure.
DEFENDANT KILGONE: No, not by agreement.
THE COURT: You are ready for trial today?
MR. GOGGIN [another prosecutor]: Let's ...