APPEAL from the Circuit Court of Cook County; the Hon. EARL
ARKISS, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendants were jointly found guilty in a bench trial of the delivery of a controlled substance (heroin, less than 30 grams), in violation of section 401(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1401(b)). In this appeal, they do not challenge the sufficiency of the evidence but contend only that the trial court was without jurisdiction to vacate its earlier order granting them a new trial and that, in any event, there was no valid waiver of a jury trial.
The facts are not disputed. Defendants were found guilty on January 31, 1974, and the court continued the matter to March 4, 1974, for post-trial motions and sentencing. On that date, the court sua sponte vacated its earlier finding of guilt and granted both defendants a new trial, stating as basis therefor, "On search of my record, there wasn't executed by these defendants a jury waiver." The case was then reassigned to another judge, before whom defendants moved on two occasions to dismiss on double jeopardy grounds.
While these motions were pending, at the State's request and over the objections of defendants, the case was reassigned back to the original trial judge, before whom on June 6, 1974, the State moved to vacate the order granting a new trial. A hearing was held during which the State presented a transcript of the trial proceeding which had not been available at the time the order was entered. The transcript disclosed that in the presence of both defendants the following colloquy took place:
"THE COURT: Put yourself on record.
MR. LEVITT: Stanford Levitt. And I represent Ernest and Betty Thompson.
MR. HORWITZ: The State is ready for trial at this time.
MR. LEVITT: The defense is ready, if the Court please.
THE COURT: On both of these?
THE COURT: Is there going to be a jury?
THE COURT: Bench trial. We will start as soon as we get through with the call. Are you ready to proceed this morning?"
In addition, it was brought to the attention of the judge that the half-sheet record of the court contained an entry by the ...