dissenting in part and concurring in part:
The reversal in this case, posited on the majority’s opinion that the defendant, James Baker, did not knowingly and understandably waive his right to counsel, is a total misconception of the issue. The learned discussion on waiver of counsel has no more application to this case than would a discussion on the doctrine of springing uses or the Rule in Shelley’s Case.
What are the facts?
Originally, the defendant pleaded guilty to aggravated assault and unlawful use of weapons. He was represented by court-appointed counsel. The trial judge determined his plea was voluntary and advised Mr. Baker of its consequences. He received a sentence of probation. Five months later, the State filed a petition to revoke probation. Again, Mr. Baker was appointed counsel from the public defender’s office. On April 6, 1979, at a fitness hearing, the nature of the revocation proceeding and the act giving rise to the State’s petition to revoke were explained to the defendant.
The petition to revoke probation came on for hearing on May 14, 1979. The defendant advised the court that he wanted to fire his court-appointed lawyer and have the case continued so that he could hire another lawyer. The prosecutor objected to any continuance, advising the court that the State’s witnesses were present. Apparently concluding that the case should not be continued, the trial court advised the defendant that the case was going to proceed to a hearing and that if the defendant fired his lawyer that he would be proceeding that day to a hearing without a lawyer. Defendant fired his lawyer anyway. The hearing went on. The defendant lost and his probation was revoked. He was sentenced to a term of imprisonment of 364 days.
The majority concludes that Baker’s choice was made unwittingly and without full realization of its consequences. And, since the possible effects of such an election were severe, they believe that the hearing judge erred in permitting Baker to represent himself without admonishing him of his right to counsel.
Why, it may be asked, should a trial judge advise a defendant of his right to counsel when the defendant has counsel? The suggestion is ludicrous. Supposing a prisoner was offered a full meal which was set down in front of him. Suppose further that the prisoner stated that he wanted to buy his own meal and he would like to go down to the corner restaurant to do so. Suppose further that the jailer told the prisoner that he would have to eat the meal served or go hungry. Suppose further that the prisoner then threw the meal in the wastebasket. Could the prisoner then be heard to complain against the jailer that he had been allowed to go hungry and miss his meal and that the jailer had not explained to him that prisoners have a right to meals? The analogy is apropos.
The defendant did not waive counsel. He fired him. Mr. Baker did not relinquish the right to an attorney; he explicitly terminated that relationship. Waiver of counsel, then, is a nonissue. The defendant had counsel: when he pleaded guilty; immediately after the revocation petition was filed; at the fitness hearing; and at the beginning of the revocation hearing. Nothing is furthered by a declaration of procedural rules where the rights those rules protect are adequately understood in practice and have been knowingly exercised. It is only the defendant’s discharge of counsel knowing the hearing would go on anyway which prevented him from being represented by counsel. This was a self-imposed condition. The issue of whether the judge should have granted defendant’s motion for continuance, which neither party addressed, is the only issue this appeal should have presented.
Generally, the propriety of continuing a cause for substitution of counsel is for the trial court’s resolution. Absent an abuse of discretion its ruling will not be disturbed. Where a motion for continuance assigns an improper ground as a reason for delay it is not error to deny it. People v. Smith (1961), 23 Ill. 2d 512.
On entering his guilty plea, Mr. Baker was adequately informed of the nature of the charges, the allowable sentences, and his right to confront and cross-examine witnesses. The purpose of the revocation proceeding and his conduct giving rise to it were explained to him at the fitness hearing. At the revocation hearing he was allowed to confront and cross-examine witnesses. Because he was disenchanted with his original probation sentence, Mr. Baker asked to fire his lawyer. A court cannot force a lawyer on a party. Yet neither can Mr. Baker employ his desire for new counsel as a weapon to thwart the administration of justice or otherwise embarrass an effective prosecution. People v. Friedman (1980), 79 Ill. 2d 341, 347-349.
No abuse of discretion occurred in denying the continuance. During the 2/2 months preceding the revocation hearing Mr. Baker never complained of incompetent counsel. No remarks were lodged concerning inefficiency at the fitness hearing. When the continuance motion was made, the revocation hearing had begun. The People had secured the attendance of witnesses for that hearing. Moreover, Mr. Baker’s oral motion to continue did not specifically identify new counsel or that attorney’s willingness to enter the cause without further delay. (People v. Koss (1977), 52 Ill. App. 3d 605, 607.) Baker’s general statement that court-appointed counsel “could do more harm than good” provides no articulable basis why his attorney was unfit. The hearing judge was quite justified in denying the continuance.
To expect a trial judge to advise a defendant of rights which have already been made known to him, understood by him, and previously exercised, forsakes substance in the name of formality that is both tedious and inane. Furthermore, it ignores the duty a trial judge possesses in the movement of cases in a fair and responsible fashion. This is just the sort of appellate ruling that has brought the administration of criminal justice into disrepute.
The judgment of the circuit court deducting $35 from defendant’s bail deposit to pay the public defender admittedly should be reversed: that part of the judgment revoking the defendant’s probation, however, should be affirmed for the reasons stated.