Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Coles County,
the Hon. Paul C. Komada, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendant, Mickey D. Agnew, and three other persons were arrested and charged with armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). Defendant's case was severed from the others. At a preliminary hearing in the circuit court of Coles County before Judge Paul C. Komada, defendant's counsel objected to Judge Komada's hearing the matter, stating that when he was State's Attorney the judge had prosecuted the defendant on a similar but unrelated charge. After discussion, the motion was denied. At the hearing, probable cause was found, defendant was bound over for trial, and at a jury trial, with Judge Komada presiding, defendant was found guilty and sentenced to eight years' imprisonment. The appellate court affirmed (108 Ill. App.3d 79), and we allowed defendant's petition for leave to appeal (87 Ill.2d R. 315).
It is defendant's contention that his oral motion for mandatory substitution of judges was made at the earliest practicable moment, before the judge had ruled adversely to defendant on any substantive issue in the case, that the court waived the statutory requirement that the motion be written and, having elected to entertain the motion, erred in denying it.
Section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a)) provided:
"(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced."
The following colloquy ensued at the preliminary hearing, after Mr. Geisler (defense counsel) entered his appearance for the defendant in substitution of the public defender:
"THE COURT: Thank you, Mr. Geisler. And are you ready for preliminary hearing at this time?
MR. GEISLER: I am, Your Honor. I would object to the Court hearing the matter, Your Honor. I believe you were the State's Attorney on a similar charge and in that capacity, be privy to some information, Your Honor, which would put the Defendant at a disadvantage.
THE COURT: Counsel, have you filed a written motion for change of judge in this cause?
MR. GEISLER: No, Your Honor. I was not aware that you were going to be the judge.
THE COURT: Well, counselor, I was not State's Attorney at the time that this offense is alleged to have occurred, the 6th day of February of 1981.
MR. GEISLER: No, Your Honor, another matter. That is true, Your Honor. This is another matter which you were the State's Attorney with the same Defendant. I merely point out to the Court if you don't see any objection to it, Your Honor, of course, we can proceed.
THE COURT: Well, it doesn't bother me, counsel. If you wish to make a motion for change of judge, I will be glad to entertain that.
MR. GEISLER: I am only bringing it to the Court's attention. I would like to proceed with ...