APPEAL from the Circuit Court of Madison County; the Hon.
JAMES O. MONROE, JR., Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The sole question presented for review in this appeal is whether the court sufficiently advised defendant of his right to trial by jury prior to accepting his plea of guilty to the charge of aggravated battery. The State has filed no brief in this appeal.
Defendant appeared with his attorney for arraignment on May 25, 1970, and entered a plea of guilty. The record discloses that the court was thorough in his admonition to the defendant concerning his rights save in the sector of his right to trial by jury. The only reference the court made concerning the defendant's rights to a trial by jury were:
"THE COURT: Do you know this imprisonment, this punishment may be given after a plea of guilty as well as after a verdict of guilty in a jury trial?
THE COURT: O.K. Now, are you aware of your rights of trial by jury or trial without a jury, and of your right to appeal if found guilty? You know all the safeguards that exist in your favor during a trial?
After receiving the negative answer from defendant, the court gave further explanation of defendant's rights, but made no other allusion to his right to a trial by jury. The defendant persisted in his guilty plea which was accepted by the court. Defendant was placed on probation for a term of three years with the first ten months thereof to be imprisonment at the Illinois State Farm.
Defendant contends that the explanation of his rights to a jury trial was insufficient and constitutionally defective. In support of his position defendant cites Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; People v. Mims (1969), 42 Ill.2d 441, 248 N.E.2d 92; and People v. Williams (1970), 44 Ill.2d 334, 255 N.E.2d 385.
In the Williams case the defendant challenged the sufficiency of the sentencing court's admonition as to the consequences of a plea of guilty in that the court never advised defendant of his right to a trial by jury. Our Supreme Court noted that under Illinois law as it stood at the time of disposal of defendant's petition for post-conviction relief (January, 1969) the denial of his claim was proper since at the time of defendant's plea of guilty (1961) it was not necessary that defendant be advised of his right to trial by jury. The court stated:
"This conclusion was correct under the law applicable at the time of defendant's 1961 plea of guilty. Our Rule 26 (Ill. Rev. Stat. 1961, ch. 110, par. 101.26) and section 4 of division XIII of the Criminal Code (Ill. Rev. Stat. 1961, ch. 38, par. 732) regulated the proceeding. As we have noted several times, those provisions `require that before a plea of guilty is accepted, the court must explain the nature of the offense charged and the consequences that may follow if the defendant is found guilty. It is obvious that by pleading guilty the defendant is foregoing his right to a trial of any kind, and therefore we have held that the court is not required to refer explicitly to a right of trial by jury. People v. Dominco, 15 Ill.2d 590.' (People v. Outten, 22 Ill.2d 146, 149, 174 N.E.2d 685, 686; see also People v. Thomas, 27 Ill.2d 331, 189 N.E.2d 247; People v. Marshall, 23 Ill.2d 216, 177 N.E.2d 835.)"
A distinction was drawn where a defendant elected to stand trial but waived his right to trial by jury. In such cases the constitutional right to trial by jury and the condition under which it could be waived was codified:
"Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." Ill. ...