dissenting:
I concur with the majority’s analysis as to the alleged jurisdictional flaw, as well as the effect of defendant’s prior 1970 armed robbery conviction in these probation revocation proceedings. I cannot agree with my colleagues’ position on the waiver of counsel issue. Since such resolution controls the outcome in this cause, I respectfully dissent.
For over 30 years the United States Supreme Court has adhered to the view that a trial judge, upon arraignment of a criminal defendant, is presumed to discharge his responsibility to advise the accused of his constitutional rights. (Bute v. Illinois (1948), 333 U.S. 640, 670-72, 92 L. Ed. 986, 1002-03, 68 S. Ct. 763, 779.) I think this conclusion applies with equal force to a trial judge’s statutory obligations which are founded on such guarantees (Ill. Rev. Stat. 1979, ch. 110A, par. 401). Although this inference is subject to challenge, such an attack cannot be successful when its genesis is a silent record. Essentially, the majority holds it can.
The record reflects the defendant was, in fact, advised of his rights, “* * * including the right to counsel e ° In short, the docket entry reflects the trial judge’s actions were consistent with his constitutional and statutory responsibilities. Since the charge was only a misdemeanor, no statutory or constitutional requirements exist requiring such proceeding to be transcribed. People v. Hopping (1975), 60 Ill. 2d 246, appeal dismissed (1975), 423 U.S. 907, 46 L. Ed. 2d 136, 96 S. Ct. 209.
Moreover, nowhere in the record or the briefs does the defendant ever make an affirmative allegation that the trial judge failed to admonish him of his right to counsel. Lacking such, the inference that trial judges discharge their duties in constitutional fashion remains intact. And, when this factor is considered in light of the record evidence of the docket entry, such is sufficient to establish a waiver of the right to counsel.
Actually, the reversal here is gratuitous. The defendant has never alleged that his constitutional right to the assistance of counsel has been denied or infringed. He merely claims the record reflects that such might have occurred. The majority assumes he did not understand his rights because the record does not say he understood them. But such an argument is circuitous, since even if defendant did waive his right to counsel, the majority would still reverse. Because a distinction must be drawn between what actually transpired at the arraignment as the record reflects it, and the defendant’s unverified, naked supposition, I dissent.