People v. Scott , 36 Ill. App. 3d 304 ( 1976 )

Mr. JUSTICE LEIGHTON,

dissenting:

I believe that the right of an accused to be told he can have counsel to assist him in his defense, and if he is indigent, that one will be appoihted for him, is so important that judges should not engage in nice calculations about when that right should be enjoyed. Compare Glasser v. United States (1941), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, 467; People v. Noble, 42 Ill. 2d 425, 248 N.E.2d 96.

In this case, defendant appeared in the trial court for a preliminary hearing on a theft charge. By the laws of this State, the judge was required to tell him that he had the right to counsel. (Ill. Rev. Stat. 1971, ch. 38, par. 109 — 1(b)(2); Supreme Court Rule 401, Ill. Rev. Stat. 1971, ch. 110A, par. 401.) It has been held that this right exists whether or not the accused is indigent. (See People v. Manikas, 87 Ill. App. 2d 227, 230 N.E.2d 577; compare Alexander v. City of Anchorage (Alas. 1971), 490 P.2d 910.) Furthermore, it is the law of this State that if an accused, without being advised of his right to counsel, is subjected to a trial for which he can be incarcerated, the judgment entered in that proceeding will be set aside. People v. Fletcher, 74 Ill. App. 2d 387, 220 N.E.2d 70 (abstract opinion); compare People v. McKenzie, 89 Ill. App. 2d 157, 231 N.E.2d 702.

The record before us clearly shows that although defendant was in court for a preliminary hearing and then went to trial, he was not advised of his right to counsel. Defendant was charged with theft, an offense not punishable by fine only, (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1) and the State concedes that he was an indigent person when he appeared in the trial court. Accordingly, he should have been advised of his right to counsel.

For these reasons, I vote to reverse this judgment and remand it for a new trial in which this defendant’s right to counsel will be preserved and protected. Therefore, I respectfully dissent.