APPEAL from the Circuit Court of Tazewell County; the Hon.
ARTHUR H. GROSS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
• 1 On appeal from an order of the circuit court of Tazewell County revoking his probation and sentencing him to a term of imprisonment of 364 days, the defendant, James Baker, raises two issues for our consideration: first, did the defendant effectively waive his right to counsel at the probation revocation hearing; and second, must the trial court's order that the costs for the services of a public defender are to be taxed against the defendant's bail bond deposit be reversed. With regard to this latter issue, the State and the defendant are in agreement that the statute authorizing payment for legal services out of a defendant's bail deposit is unconstitutional (People v. Cook (1980), 81 Ill.2d 176, 407 N.E.2d 56; Ill. Rev. Stat. 1979, ch. 38, par. 110-7(g)). Accordingly, that portion of the court's order deducting $35 from the defendant's bail deposit to meet the costs of the public defender must be reversed, and we hereby order that the $35 be returned to the defendant.
The State and the defendant are not in agreement on whether the defendant effectively waived his right to counsel at the probation revocation hearing. It is to this issue that we address the balance of this opinion.
On November 2, 1978, the defendant pleaded guilty to the offenses of aggravated assault (Ill. Rev. Stat. 1977, ch. 38, par. 12-2(a)(1)) and unlawful use of weapons (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(1)). Pursuant to plea negotiations worked out between the defendant's counsel, assistant public defender Fred Bernardi, and the assistant State's attorney, the court sentenced the defendant to a 1-year term of probation. The probation was conditioned upon the voluntary commitment of the defendant to the Danville Veteran's Administration Hospital for psychiatric treatment, and upon the serving of 90 days' imprisonment in the Tazewell County jail.
On March 20, 1979, the defendant left the V.A. hospital without first receiving the consent of the adult probation officer of Tazewell County. That same day a petition was filed in the circuit court of Tazewell County charging the defendant with violating the conditions of his probation, and seeking the revocation thereof. The office of the public defender was again appointed to represent the defendant.
The probation revocation hearing was held on May 14, 1979. The defendant was present, as was assistant public defender Fred Bernardi. Prior to the presentation of the State's case, the defendant addressed the court and made a motion to discharge Mr. Bernardi, explaining that he was dissatisfied with Mr. Bernardi's performance. The defendant then informed the court that he had discussed his case with another attorney who had agreed to represent him, and moved for a continuance so that his new attorney could fully familiarize himself with the case. The court initially denied both of the defendant's motions, and directed Mr. Bernardi to cross-examine the State's witnesses. The defendant, however, again objected to Mr. Bernardi's representation, and the following colloquy ensued:
"The Defendant: Your Honor, I would rather that Mr. Bernardi did not cross examine them. He could possibly do more damage to my cause than good.
Mr. Bernardi: I will do anything the Court states. I will sit here as a mute or I will be discharged. Whatever the Court determines as necessary. This man does not want me and I don't want to be next to him in this case and harm it if he says he doesn't want me here.
The Court: All right. Again, the motion to discharge counsel, that if, if I didn't allow you to discharge your attorney and would deny you a continuance, you would in effect be submitting here to representing yourself here today. Do you understand that, sir?
The Court: All right. And full well realizing that, do you wish the, again, the Court to discharge your attorney of record?
The Court: All right. Mr. Bernardi, you will be discharged then from the cause at this time. And your motion for a continuance in order to ...