specially concurring:
I concur with Justice McDade that defendant’s conviction should be vacated.
The federal and Illinois constitutions both guarantee criminal defendants the right to be represented by counsel. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. This right has been held to apply only when the accused is actually sentenced to imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538, 92 S. Ct. 2006, 2012 (1972); People v. Scott, 68 Ill. 2d 269, 272 (1977).
The Code of Criminal Procedure of 1963 also provides for the right to counsel. 725 ILCS 5/109—1(b)(2), 113 — 3(b) (West 2002). These sections require the trial judge to inform the defendant of the right to counsel and appoint counsel if the defendant is indigent (725 ILCS 5/109—1(b)(2) (West 2002)) unless “the penalty is a fine only” (725 ILCS 5/113—3(b) (West 2002)). As used in this section, “penalty” refers to the punishment actually imposed by the court upon conviction, not a potential punishment provided for in the criminal statute. People v. Scott, 68 Ill. 2d at 273-74.
Illinois Supreme Court Rule 401 (134 Ill. 2d R. 401(a)), which is at issue in this case, does not concern the right to counsel, but rather the court’s duties when a criminal defendant waives that right. Unlike the statutory provisions, Rule 401’s application does not depend on the penalty imposed, but on whether the offense is “punishable by imprisonment. ’ ’
Here, defendant was charged with driving while his license was suspended, which is punishable by imprisonment for up to one year. 625 ILCS 5/6—303(a) (West 2002); 730 ILCS 5/5—8—3(a)(1) (West 2002). Although defendant did not have the right to have counsel appointed for him (see Scott, 68 Ill. 2d at 273-74), the plain language of Rule 401 required that the trial judge admonish him concerning the effects of his decision to represent himself. 134 Ill. 2d R. 401(a); People v. Herring, 327 Ill. App. 3d 259, 262 (2002). Because the trial court did not admonish defendant as required, defendant’s conviction should be vacated.