Appeal from the Circuit Court of Carroll County; the Hon. F.
Lawrence Lenz, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Gary L. Crete, was charged by information on November 8, 1982, with the offenses of aggravated battery, resisting a police officer and criminal damage to property. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-4(b)(6), 31-1, 21-1(a).) The first trial by jury on May 31, 1983, resulted in a mistrial. At a second jury trial held on June 28-29, 1983, defendant was found guilty of aggravated battery and resisting a police officer but not guilty of criminal damage to property. Defendant was sentenced to 10 years' imprisonment for aggravated battery and 360 days for resisting a police officer.
On appeal defendant contends that: (1) the trial court improperly denied defendant's motion for substitution of judge for cause; (2) the trial court abused its discretion in sentencing defendant to the maximum extended term for aggravated battery; and (3) the trial court erred in refusing to consider defendant's timely motion to reduce or modify sentence. Additionally, in a motion which this court ordered to be taken with the case, defendant contends he is entitled to refund of his bail security deposit.
At 1:30 a.m. on November 7, 1982, as George Hayden and his brother were pulling into the parking lot of the Riverboat Lounge in Savanna, they observed defendant slamming a woman (defendant's wife) against a pickup truck. The two witnesses testified that when they approached the defendant, he had a knife, although the defendant and his wife claimed it was merely a key chain file and bottle opener. The witnesses ran into the lounge and had the owner call the police. As the police officers arrived, they saw defendant run out the back door of the lounge and strike his wife on the head with his hand, knocking her to the pavement.
At the time of the incident, defendant's wife told the police officers that she wanted her husband arrested. When Officer Chris Long attempted to handcuff defendant, he resisted. The officers testified that defendant refused to enter the squad car and, as they were putting him in, defendant kicked Officer Long in the leg, swore at him, and spit in his face. Upon arrival at the station, defendant had to be physically removed from the police car. Afterwards, when defendant was transported to the county jail, he was verbally abusive and uncooperative.
On June 29, 1983, the jury found defendant guilty of aggravated battery and resisting a police officer, but not guilty of criminal damage to property. At a sentencing hearing on August 1, 1983, the court found that defendant was eligible for an extended-term sentence and sentenced him to 10 years' imprisonment for aggravated battery and 360 days for resisting a police officer.
On August 9, 1983, counsel for the defendant filed a motion to vacate or modify sentence and, alternatively, for a new trial. Defendant filed a pro se motion, supported by affidavit, on October 28, 1983, seeking to disqualify the trial judge from ruling on the motion to vacate sentence. Following a hearing on November 30, 1983, the defendant's motion to disqualify the trial judge was denied and the court granted the State's motion to deny or dismiss defense counsel's motion to vacate or modify sentence or, alternatively, for a new trial.
• 1 Defendant first argues that the trial judge erred by not allowing a hearing on defendant's motion for substitution of judge for cause nor stating a coherent basis for denying the motion on its face. Additionally, defendant contends that the statute required that another judge, rather than the trial judge, should have heard the motion.
Section 114-5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 114-5(c)) provides in pertinent part:
"[A]ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion * * *."
In the present case defendant filed a pro se motion, supported by affidavit, to disqualify the trial judge from presiding over defendant's pending motion to vacate his sentence, alleging prejudice on the part of the judge against defendant. A copy of the motion was sent to the chief judge. The chief judge then assigned the motion for hearing on November 30, 1983, the date scheduled for the hearing on post-trial motions. In a letter to defendant the chief judge indicated:
"It is not the prerogative of the chief judge to grant the relief you prayed for without a hearing before the judge assigned to the case."
The Illinois Supreme Court has repeatedly stated that a motion to transfer a case to a new judge, due to the alleged prejudice of the assigned judge, must be made at the earliest practical moment after any potential prejudice is discovered. (People v. Taylor (1984), 101 Ill.2d 508, 518, 463 N.E.2d 705.) This is true even though a motion for substitution of judge is to receive a liberal rather than a strict construction. (People v. Clay (1984), 124 Ill. App.3d 140, 147, 463 N.E.2d 929.) In the present case, defendant asked for a substitution of judge after he had been found guilty by the jury and sentenced by the judge, although he argues that his motion was timely because it was made well in advance of the hearing on post-trial motions.
A defendant's right to substitute judge for cause is not absolute, but requires substantiation to insure that his claim of prejudice is not frivolously made. (People v. Vance (1979), 76 Ill.2d 171, 178, 390 N.E.2d 867.) Furthermore, the trial judge does not have the burden of justifying his retention of a case. (People v. Trolia (1982), 107 Ill. App.3d 487, 499, 437 N.E.2d 804, cert. denied (1983), 460 U.S. 1044, 75 L.Ed.2d 798, 103 S.Ct. 1442.) Rather, a defendant has the burden of showing prejudice ...