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People v. Smith

OPINION FILED MARCH 8, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JEFF SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. Allan W. Cargerman, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

On December 8, 1981, the defendant, Jeff Smith, was arrested, convicted and sentenced in Winnebago County to six months' imprisonment and a $25 fine for driving while license revoked and speeding. (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 6-303, 11-601(b).) The former offense is a Class A misdemeanor, the latter is punishable by a fine.

The defendant was arrested at 1:45 a.m. on December 8 and taken to the Winnebago County Public Safety Building. He appeared before the circuit court later that morning at 10:30 or 11 a.m. At that time he entered a plea of guilty to charges and was sentenced as we have indicated. Later, On December 16, 1981, a motion to withdraw the defendant's guilty plea pursuant to Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)) was filed on his behalf by counsel. That motion was heard and denied. Counsel for the defendant then filed a motion for reduction of sentence. After a hearing, the defendant's sentence was modified by the trial court to six months' periodic imprisonment. The defendant appealed and raises three issues: (1) whether the defendant's motion to withdraw his guilty plea was improperly denied; (2) whether defendant's sentence was improperly imposed, and (3) whether a corrected mittimus should be issued.

Defendant asserts the trial court's acceptance of his guilty plea nine hours after his arrest constituted an egregious violation of his due process rights. Specifically, he asserts the court failed to comply with either the spirit or the letter of Supreme Court Rules 401 and 402 (87 Ill.2d Rules 401, 402).

He contends there was an ineffective waiver of counsel, and that he was not properly admonished as to the nature of the charges, the minimum possible sentences, or his right to plead not guilty. Further, he asserts his plea was improperly accepted because there was no sufficient factual basis for the plea, and the court made no effort to determine that the plea was voluntarily and understandingly tendered as required by Supreme Court Rule 402(b) (87 Ill.2d R. 402(b)).

Finally, defendant points to the facts surrounding the proceedings at which his plea was entered merely nine hours after he was arrested. He notes it was his first appearance before the judge. Considering certain comments he made about leaving after the hearing, he asserts it was clear that he did not understand the import of the proceedings which had just occurred.

The State asserts the defendant did validly waive counsel, and that the trial court strictly admonished him pursuant to Supreme Court Rule 401 (87 Ill.2d R. 401). Alternatively, the State argues that in light of the defendant's "legal sophistication" a failure by the court to properly admonish him may be considered harmless. (People v. Jackson (1978), 59 Ill. App.3d 1004.) Inter alia, the record indicates the defendant served seven days in jail after pleading guilty to driving while intoxicated in June 1980, and was fined after his guilty plea to reckless driving in May 1980.

• 1, 2 The State argues the court is not required to explain each element of the offense when informing the defendant of the nature of the charge (People v. Nunn (1975), 29 Ill. App.3d 399), nor to explain what acts the defendant did to commit the offense (People v. Harden (1967), 38 Ill.2d 559). In fact, the State argues, it has been held that the mere naming of the offense was sufficient to admonish the defendant as to the nature of the charges. People v. Krantz (1974), 58 Ill.2d 187.

The State points out that the defendant's theory that more than the name of the offense is required when the defendant is not represented by counsel is unsupported by authority. Likewise, the State argues Krantz and People v. Baxter (1974), 23 Ill. App.3d 471, also defeat the defendant's argument as to the court's failure to admonish as to the possible "minimum" sentences of probation, conditional discharge, or periodic imprisonment. Also, the failure to inform the defendant of the right to plead not guilty or to persist in a plea is not fatal to the guilty plea. People v. Lumley (1979), 76 Ill. App.3d 221.

Finally, the State asserts that substantial compliance with Supreme Court Rule 402 is still shown even where the court fails to inquire whether any force or threats had been used against the defendant. People v. Gratton (1974), 19 Ill. App.3d 503.

We are of the opinion that the defendant's motion to withdraw his guilty plea was properly denied by the trial court.

At the time the defendant entered his guilty plea the following proceedings took place before the trial court:

"THE CLERK: 81-TR-53870 and 71, Jeff Smith.

THE COURT: Let the record show the Defendant in Court. You are Mr. Smith?

THE DEFENDANT: Yes, sir.

THE COURT: How old are you?

THE DEFENDANT: 19.

THE COURT: You are charged with drivers license revoked and speeding 68 in a 55. The first offense is punishable by a fine up to One Thousand Dollars or imprisonment for up to one year in jail or both. The second offense is punishable by a fine of Twenty-Five Dollars and costs. As to both charges, however, you are presumed innocent. You have a right to a trial before a judge or jury. You have a right to be represented by an attorney. If you are indigent and cannot afford an attorney, you maybe entitled to have one free of charge; do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: What do you wish to do today?

THE DEFENDANT: Huh?

THE COURT: What do you wish to do today about these cases?

THE DEFENDANT: I will just plead guilty.

THE COURT: You understand when you plead guilty you give up your right to trial before a judge or jury?

THE DEFENDANT: Yes.

THE COURT: And your right to meet the witnesses in court and make the State prove the charges beyond a reasonable ...


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