Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Tazewell
County, the Hon. Arthur H. Gross, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the appellate court reversing an order of the circuit court of Tazewell County that revoked the defendant's probation. (101 Ill. App.3d 1114.) A divided appellate court held that the defendant did not knowingly, understandingly and effectively waive his right to counsel where the circuit court failed to give proper admonishments. We granted the People's petition for leave to appeal on March 30, 1982. 73 Ill.2d R. 315.
On October 12, 1978, the defendant was charged in a two-count information with the offenses of aggravated assault and unlawful use of a weapon. Pursuant to negotiations between the public defender of Tazewell County and the Tazewell County State's Attorney, the circuit court sentenced the defendant to a one-year term of probation. The probation was conditioned upon the voluntary commitment of the defendant to the Danville Veterans' Administration Hospital for psychiatric treatment and upon his serving 90 days' imprisonment in the Tazewell County jail.
On March 20, 1979, the defendant left the Veterans' 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 a revocation.
On March 22, the public defender was again appointed to represent the defendant and on April 6, 1979, did appear with the defendant at a hearing to determine the defendant's fitness.
The hearing on the petition to revoke the defendant's probation was set for May 14, 1979. On the 14th, just prior to the hearing, the defendant requested that the court discharge the public defender and continue the case to permit the defendant to be represented by another attorney who had agreed to take the case. The State objected to a continuance, pointing out that two doctors from the Danville Veterans' Administration Hospital, who the defendant requested be in attendance, were present and ready to testify.
The circuit court denied the defendant's request to discharge his attorney and indicated that the court "would like Mr. Bernardi [the public defender] to cross-examine witnesses for the State." The defendant objected to the public defender's continued representation and told the court that Mr. Bernardi "could possibly do more damage than good."
The court then cautioned the defendant that, if it discharged the defendant's counsel and denied the defendant's request for a continuance, the defendant would, in effect, be representing himself. After the defendant stated that he understood this, the circuit court discharged counsel and denied the defendant's request for a continuance. The court then directed the State to proceed with its case. The State presented three witnesses. The defendant did not cross-examine any of them, nor did he offer any evidence on his own behalf. The court denied several additional motions by the defendant for a continuance, and the defendant was found guilty of violating his probation.
The issue presented for our review is whether the defendant knowingly, understandingly and effectively waived his right to counsel at the probation-revocation proceedings.
The guidelines in Supreme Court Rule 401 set forth what is required when a defendant elects to waive counsel in a criminal proceeding at the trial level in this State.
"Rule 401. Waiver of Counsel
(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." (73 Ill.2d R. 401(a).)
The trial judge must, in open court, inform the defendant and determine that he understands the nature of the charge, the minimum and maximum ...