THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY F. STOOPS, Defendant-Appellant, 313 Ill. App. 3d 269

JUSTICE KNECHT delivered the opinion of the court: After a bench trial in August 1997, the trial court found defendant, Jeffrey E Stoops, guilty of two counts of aggravated battery (720 ILCS 5/12 — 4 (West 1996)). In September 1997, the trial court sentenced him to 30 months’ probation, imposed a $1,000 fine, and ordered him to make restitution of $27,034.65.

Defendant appeals his conviction and sentence, claiming the trial court erred in (1) failing to properly admonish him in accordance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) before allowing him to waive counsel and (2) in exceeding its bounds by becoming an advocate while questioning defense witnesses. Further, defendant claims he is entitled to credit against his fine for time served waiting trial in the county jail. We agree with defendant’s first contention and reverse and remand.

The State charged defendant with hitting Thomas Griffin in the head with a baseball bat and stomping on his leg and breaking it on July 13, 1996. The State alleged defendant took these actions while he and Griffin were on a public way and caused great bodily harm to Griffin. Defendant waived a jury trial and, at a later pretrial conference on February 27, 1997, defendant requested his previously appointed public defender be discharged and he be granted a continuance because he wished to retain private counsel. The trial court discharged the public defender and granted defendant’s request for a continuance.

On April 18, defendant again requested a continuance to hire counsel. He had spoken with an attorney but had not hired him yet because he had not been able to get enough money together due to child support obligations. The court granted another continuance. Defendant obtained two more continuances for the purpose of obtaining counsel.

At the pretrial conference on August 15, the trial court advised defendant, who still had not been able to hire counsel, he should get some advice from his former public defender and be prepared for trial as his earnings no longer made him eligible for the appointment of the public defender. The trial court held a bench trial on August 21. Defendant proceeded to trial pro se. The record does not show he waived counsel. The evidence at trial showed defendant came to a tavern to speak to the bartender, his girlfriend. Some dispute arose between defendant and two patrons.

Later, in the parking lot, the dispute continued and defendant struck the victim in the head with a baseball bat and stomped on his ankle. Defendant denied causing the injury to the victim’s ankle and testified he struck the victim with the bat only to protect himself from a beating by the two patrons. While the evidence was conflicting, the trial court found defendant guilty of both counts of aggravated battery. The evidence was more than sufficient to support the findings of guilt. On September 26, the sentencing hearing began. Defendant appeared with appointed counsel.

Griffin testified to the extent of his injuries. The hearing was suspended so defense counsel could review a transcript of the trial. A motion for new trial was later filed and denied. Sentencing resumed on January 28, 1998. The State argued for an extended-term sentence. The court expressed concern about the need for restitution and sentenced defendant to 30 months’ probation. The court also ordered him to make restitution to Griffin of $100 per week until $8,737.08 was paid. Then he was to pay restitution to the State in the amount of $21,600. The trial court also fined defendant $1,000.

The court ordered the State to “[p]ut all that in the probation order, submit the probation order to [defense counsel] for his review, and then to the [c]ourt for entry.” The court requested defense counsel to contact it within five days to approve the probation order and, at that time, defendant would be brought back to court so the court could explain his appeal rights. On March 6, the trial court entered an amended written order of probation in which the amount of restitution was stated as $21,670.93.

The court then admonished defendant, pursuant to Supreme Court Rule 605(a) (145 Ill. 2d R. 605(a)), of his right to appeal. This appeal followed. Notice of appeal must be filed within 30 days from the entry of final judgment (134 Ill. 2d R. 606(b)) which, in a criminal case, is the pronouncement of the sentence. People v. Allen, 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284 (1978).

Because the final judgment is the pronouncement of the sentence, which the State notes was on January 28, 1998, and not entry of a written judgment order (Allen, 71 Ill. 2d at 381, 375 N.E.2d at 1284), the State argues defendant’s notice of appeal was not timely filed. The trial court mistakenly told defendant he had 30 days from the entry of the written order to file his notice of appeal. Thus, the trial court did not properly admonish defendant pursuant to Rule 605(

a) that his appeal would be preserved only if the notice of appeal was filed within 30 days from the date of sentence. 145 Ill. 2d R. 605(a). Where a trial court erred in telling defendant his appeal rights run from the time of the issuance of the written judgment of sentence, and the defendant filed his notice of appeal within 30 days of the issuance thereof, it has been held the interests of justice require a finding the defendant’s notice of appeal was timely filed. People v. Robinson, 229 Ill. App. 3d 627, 628, 593 N.E.2d 148, 149 (1992).

We have an analogous situation in this case because the trial court erroneously instructed defendant he had 30 days to file his notice of appeal after the entry of the written probation order, and he did so. In the interest of justice, defendant’s notice of appeal will be considered timely filed. The State next argues defendant has forfeited consideration of whether the trial court accepted his waiver of counsel without compliance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) by failing to include this error in his posttrial motion for a new trial. People v.

Johnson, 119 Ill. 2d 119, 131, 518 N.E.2d 100, 105 (1987). However, this court has considered the issue under the plain error rule, because the right to counsel is fundamental (People v. Langley, 226 Ill. App. 3d 742, 749, 589 N.E.2d 824, 829 (1992)), and review is warranted in this case. Defendant argues the record fails to demonstrate he was admonished according to Supreme Court Rule 401(a), and he never waived his right to counsel. To accomplish a valid waiver of counsel, Rule 401 requires: “(

a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and (3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court. (

b) Transcript. The proceedings required by this rule to be in open court shall be taken verbatim, and upon order of the trial court transcribed, filed[,] and made a part of the common[-]law record.” 134 Ill. 2d R. 401. Here, no verbatim record was made, as required by Rule 401(b), to show defendant was given the admonishments required by Rule 401(a). No court reporter was present at the August pretrial conference nor does the record or argument by the State indicate any of the Rule 401(

a) admonishments were given to defendant. He proceeded pro se at his bench trial on August 21. The right to counsel is fundamental and will not be lightly deemed waived. People v. Robertson, 181 Ill. App. 3d 760, 763, 537 N.E.2d 1036, 1039 (1989). Rule 401(

a) governs a trial court’s acceptance of a defendant’s counsel waiver. Strict compliance with Rule 401(

a) is not always required. Substantial compliance will suffice if the waiver was knowingly and voluntarily made and the admonishment the defendant received did not prejudice his rights. People v. Haynes, 174 Ill. 2d 204, 236, 673 N.E.2d 318, 333 (1996). Whatever admonishments are given to a defendant, however, must be included in the record since Rule 401(

b) requires that when a defendant waives the right to counsel, the proceedings must be recorded verbatim, and strict compliance with Rule 401(

b) is required. People v. Montgomery, 298 Ill. App. 3d 1096, 1099, 700 N.E.2d 1085, 1088 (1998). The record does not show defendant wanted to proceed pro se. He indicated he wanted to obtain private counsel and the public defender was discharged. Later, after he obtained multiple continuances, when he found he could not afford to retain private counsel, the trial court informed defendant he made too much money to have counsel appointed for him. The trial court told defendant to “consult” with the public defender for advice but he might have to proceed on his own.

Correspondence in the record indicates defendant thought he obtained a plea bargain with the State and would have the plea entered prior to trial and would not need counsel. Instead, no plea agreement was entered and the case went to trial with defendant having no choice but to represent himself. The trial court was required to consider competing interests. Defendant was entitled to the effective assistance of counsel in presenting his defense and ordinarily would be entitled to counsel of his choice. People v. Myles, 86 Ill. 2d 260, 268, 427 N.E.2d 59, 62 (1981); People v.

Johnson, 75 Ill. 2d 180, 185, 387 N.E.2d 688, 690 (1979). However, “the right to counsel of a defendant’s own choosing may not be employed as a weapon to indefinitely thwart the administration of justice.” Myles, 86 Ill. 2d at 268, 427 N.E.2d at 62-63. A defendant cannot use his right to counsel to thwart the timely administration of justice by insisting on appointed counsel of his choice. People v. West, 137 Ill. 2d 558, 588, 560 N.E.2d 594, 608 (1990).

This case differs from the situation where a defendant seeks to represent himself and the question is whether he knowingly and voluntarily gave up his right to representation in favor of his right to represent himself. Defendant made no request to represent himself. We need not reevaluate whether a defendant can be found to have waived counsel — even if he does not ask to represent himself — if the proper admonishments required in Rule 401(

a) are given, because in this case no admonishments were given. People v. Childs, 278 Ill. App. 3d 65, 74, 662 N.E.2d 161, 166-67 (1996). To proceed to trial without counsel, whether or not it was at the request of defendant, the trial court must give the admonishments required by Rule 401(a). Childs, 278 Ill. App. 3d at 74, 662 N.E.2d at 166-67. The State argues the record indicates defendant was aware of the information required to be conveyed to him by Rule 401(a). The admonishments necessary under Rule 401(

a) must be provided when the court learns the defendant has chosen to waive counsel so the defendant can consider the ramifications of his decision. Prior admonitions or the request to discharge counsel do not serve to fully inform a defendant of the ramifications of acting on his own behalf. He cannot be expected to rely on admonishments given several months earlier, at a point when he was not requesting to waive counsel. Langley, 226 Ill. App. 3d at 749-50, 589 N.E.2d at 830. Defendant was forced to proceed to trial after failing to obtain counsel following several months of continuances.

The record does not show a valid waiver of counsel, and defendant is entitled to a new trial. In the circumstances present here, the trial court should have given the proper admonishments and inquired whether defendant was willing to waive counsel. If the defendant still wanted counsel but had not obtained his own after the trial court had permitted time to do so, then counsel could have been appointed. The court could have later conducted a hearing pursuant to

section 113 — 31 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113 — 3.1 (West 1996)) for payment for appointed counsel. Defendant also contends the trial court overstepped its bounds while attempting to assist him at trial, and he is entitled to credit against his fine for the time served in pretrial detention. Because we have concluded defendant is entitled to a new trial, we need not address these issues but note the statutory right to per diem credit is mandatory unless the statute under which the fine is imposed prohibits such crediting. The trial court’s judgment is reversed and the cause remanded. Reversed and remanded. GARMAN, J., concurs.