Appeal from Circuit Court of Macoupin County No. 96CF134 Honorable Thomas P. Carmody, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
After a bench trial in August 1997, the trial court found defendant, Jeffrey F. Stoops, guilty of two counts of aggravated battery (720 ILCS 5/12-4 (West 1996)). In September 1997, the trial court sentenced him to 30 months' probation, imposed a $1,000 fine, and ordered him to make restitution of $27,034.65. Defendant appeals his conviction and sentence, claiming the trial court erred in (1) failing to properly admonish him in accordance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) before allowing him to waive counsel and (2) in exceeding its bounds by becoming an advocate while questioning defense witnesses. Further, defendant claims he is entitled to credit against his fine for time served waiting trial in the county jail. We agree with defendant's first contention and reverse and remand.
The State charged defendant with hitting Thomas Griffin in the head with a baseball bat and stomping on his leg and breaking it on July 13, 1996. The State alleged defendant took these actions while he and Griffin were on a public way and caused great bodily harm to Griffin.
Defendant waived a jury trial and, at a later pretrial conference on February 27, 1997, defendant requested his previously appointed public defender be discharged and he be granted a continuance because he wished to retain private counsel. The trial court discharged the public defender and granted defendant's request for a continuance.
On April 18, defendant again requested a continuance to hire counsel. He had spoken with an attorney but had not hired him yet because he had not been able to get enough money together due to child support obligations. The court granted another continuance. Defendant obtained two more continuances for the purpose of obtaining counsel. At the pretrial conference on August 15, the trial court advised defendant, who still had not been able to hire counsel, he should get some advice from his former public defender and be prepared for trial as his earnings no longer made him eligible for the appointment of the public defender.
The trial court held a bench trial on August 21. Defendant proceeded to trial pro se. The record does not show he waived counsel.
The evidence at trial showed defendant came to a tavern to speak to the bartender, his girlfriend. Some dispute arose between defendant and two patrons. Later, in the parking lot, the dispute continued and defendant struck the victim in the head with a baseball bat and stomped on his ankle. Defendant denied causing the injury to the victim's ankle and testified he struck the victim with the bat only to protect himself from a beating by the two patrons.
While the evidence was conflicting, the trial court found defendant guilty of both counts of aggravated battery. The evidence was more than sufficient to support the findings of guilt.
On September 26, the sentencing hearing began. Defendant appeared with appointed counsel. Griffin testified to the extent of his injuries. The hearing was suspended so defense counsel could review a transcript of the trial. A motion for new trial was later filed and denied. Sentencing resumed on January 28, 1998. The State argued for an extended-term sentence. The court expressed concern about the need for restitution and sentenced defendant to 30 months' probation. The court also ordered him to make restitution to Griffin of $100 per week until $8,737.08 was paid. Then he was to pay restitution to the State in the amount of $21,600. The trial court also fined defendant $1,000. The court ordered the State to "[p]ut all that in the probation order, submit the probation order to [defense counsel] for his review, and then to the [c]court for entry." The court requested defense counsel to contact it within five days to approve the probation order and, at that time, defendant would be brought back to court so the court could explain his appeal rights.
On March 6, the trial court entered an amended written order of probation in which the amount of restitution was stated as $21,670.93. The court then admonished defendant, pursuant to Supreme Court Rule 605(a) (145 Ill. 2d R. 605(a)), of his right to appeal. This appeal followed.
Notice of appeal must be filed within 30 days from the entry of final judgment (134 Ill. 2d R. 606(b)) which, in a criminal case, is the pronouncement of the sentence. People v. Allen, 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284 (1978). Because the final judgment is the pronouncement of the sentence, which the State notes was on January 28, 1998, and not entry of a written judgment order (Allen, 71 Ill. 2d at 381, 375 N.E.2d at 1284), the State argues defendant's notice of appeal was not timely filed.
The trial court mistakenly told defendant he had 30 days from the entry of the written order to file his notice of appeal. Thus, the trial court did not properly admonish defendant pursuant to Rule 605(a) that his appeal would be preserved only if the notice of appeal was filed within 30 days from the date of sentence. 145 Ill. 2d R. 605(a). Where a trial court erred in telling defendant his appeal rights run from the time of the issuance of the written judgment of sentence, and the defendant filed his notice of appeal within 30 days of the issuance thereof, it has been held the interests of justice require a finding the defendant's notice of appeal was timely filed. People v. Robinson, 229 Ill. App. 3d 627, 628, 593 N.E.2d 148, 149 (1992). We have an analogous situation in this case because the trial court erroneously instructed defendant he had 30 days to file his notice of appeal after the entry of the written probation order, and he did so. In the interest of justice, defendant's notice of appeal will be considered timely filed.
The State next argues defendant has forfeited consideration of whether the trial court accepted his waiver of counsel without compliance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) by failing to include this error in his posttrial motion for a new trial. People v. Johnson, 119 Ill. 2d 119, 131, 518 N.E.2d 100, 105 (1987). However, this court has considered the issue under the plain error rule, because the right to counsel is fundamental (People v. Langley, 226 Ill. App. 3d 742, 749, 589 N.E.2d 824, 829 (1992)), and review is warranted in this case.
Defendant argues the record fails to demonstrate he was admonished according to Supreme Court Rule 401(a), and he never waived his right to counsel. To accomplish a valid waiver of counsel, Rule 401 requires:
"(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, ...