concurring in part and dissenting in part:
I concur with the majority that the sentence imposed is not excessive. I differ sharply on the question of conflict of interest and respectfully dissent on that issue.
The majority’s emphasis on “centralized” versus “decentralized” natures of the public defender’s office is a spurious and nonexistent distinction.
The office of Public Defender is a statutory creation (Ill. Rev. Stat. 1977, ch. 34, par. 5601 et seq.) and the statute is mandatory and plain in its meaning.
Section 1 of “An Act in relation to the office of Public Defender” (Ill. Rev. Stat. 1977, ch. 34, par. 5601) creates the office and designates that a “person,” not “persons,” shall be appointed to it; section 2 (Ill. Rev. Stat. 1977, ch. 34, par. 5602) mandates the county (“shall”) to make the appointment.
Section 6 (Ill. Rev. Stat. 1977, ch. 34, par. 5606) confers on the public defender the power to appoint assistants who shall serve at his pleasure. There is no power in the circuit judges to appoint assistants, only to determine their number. As an appointee of a county board, a public defender is part of the executive branch of the government and his discretionary powers may not be usurped by the judiciary. In this respect he is much like the State’s Attorney. Compare People v. Stinger (1974), 22 Ill. App. 3d 371, 373, 317 N.E.2d 340, 342, wherein the court said, “The State’s Attorney’s office is a part of the executive branch. It is clear that the judicial department may not take as its own those discretionary powers vested in an executive officer.”
It is thus clear that the organization of the public defender’s office in Sangamon County is contrary to law. The statute contemplates a single office, staffed with as many assistants as the public defender may convince the circuit judges he requires, but appointed by him. In this sense, they are all bound together with a single loyalty and a single purpose, just as all assistant State’s Attorneys are bound to the State’s Attorney.
This court should not tolerate subterfuge as a means of avoiding a difficult problem.
In cases of conflict of interest, the statute is equally clear:
“[I]f the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the public defender, the court shall appoint as counsel a licensed attorney at law of this State * ° (Ill. Rev. Stat. 1977, ch. 38, par. 113 — 3(b).)
The distinction between the public defender and what is known in the criminal argot as a “bar association attorney” is sharply drawn. The defendant gets one or the other, not a hybrid.
I am well acquainted with the difficulties that the existing system creates for trial courts, if they follow the statute, but the solution lies either with the legislature or with our supreme court. The majority opinion in this case only invites all other counties to reorganize their public defender offices along the lines of Sangamon County. It is “the-emperor-has-no-clothes” solution.
In this case, the defendant was represented by one who purported to be an assistant public defender but now is claimed not to be such because his appointment was contrary to statute.
Although I am extremely reluctant to find additional per se conflicts of interest, as indicated in my dissent in People v. Walton (1978), 66 Ill. App. 3d 913, 383 N.E.2d 1000, appeal allowed (1979),_Ill. 2d_, under the circumstances here exhibited, I would reverse and remand for a new trial with a “licensed attorney of this state,” not connected in any fashion with the public defender’s office, as counsel.