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09/28/88 the People of the State of v. David Floyd Houston

September 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID FLOYD HOUSTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

529 N.E.2d 292, 174 Ill. App. 3d 584, 124 Ill. Dec. 472 1988.IL.1462

Appeal from the Circuit Court of Macon County; the Hon. John K. Greanias, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On April 20, 1987, in the circuit court of Macon County, defendant David Houston was tried in absentia and found guilty by a jury of two counts of burglary in violation of section 19-1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 19-1). Defendant was sentenced in absentia to six years' imprisonment and ordered to make restitution in the amount of $1,500. On September 15, 1987, defendant filed a motion pursuant to section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1) requesting a new trial, alleging his absence was not his fault and was due to circumstances beyond his control. On December 8, this motion was denied. Defendant appeals, alleging (1) the court erred in accepting his pro se waiver of his preliminary hearing, and (2) the court erred in denying his section 115-4.1 motion for new trial. We affirm.

The evidence presented at trial established that on Sunday, November 30, 1986, the Decatur police were on routine patrol in the vicinity of Miles Chevrolet, which was closed that day. A Ford van was parked with its door open in the vicinity of the luxury vans. As the police stopped to investigate, defendant entered the Ford van, and a high-speed chase ensued, ending in a parking lot where defendant was arrested. The police found various tools on or about defendant's person. In the van were eight captain's chairs taken from two of the Miles dealership vans, which had previously been locked and now had holes punched in the doors near the locks.

Defendant argues first that the court erred in accepting his waiver of his preliminary hearing. Defendant first appeared in court on December 8, 1986, and it was found he was not indigent. On December 18, he reappeared in court and advised he had not yet retained counsel but was intending to do so after he sold his car. The following exchange took place:

"THE COURT: We want in every case here a defendant to have his own attorney if it is possible. It works out better from the standpoint he selects who is going to represent him. He not only chooses, but he pays. And it works out much better, if it is possible. And to accomplish that we often give additional time. The problem this morning is there is a witness here waiting for the hearing. And I looked down to see if he is here on any other case, and if the witness list is correct, he is only here on this case.

: That is correct.

THE COURT: If I may, do you know what a preliminary hearing is, just what you accomplish?, DEFENDANT: In other states I do. I am not from Illinois, I am not very familiar.

THE COURT: What it amounts to is the State's Attorney has to present enough evidence to support the filing of the charge., DEFENDANT: Finding of probable cause?

THE COURT: If the court is satisfied that a charge has some evidence to support it, then it proceed [ sic ] to arraignment, meaning what is the plea. It is not a trial. You are not going to be convicted at a preliminary hearing. I don't consider it a vital matter determining the issue, just whether the charge has been filed properly. What I am going to suggest is that we have a preliminary hearing, and you will hear their evidence, and you don't have to present a thing -- no evidence. The defendant usually doesn't present any. He just listens.

DEFENDANT: If it is just to determine if there is probable cause, Your Honor, I would be willing to stipulate that there is probable ...


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