APPEAL from the Circuit Court of Moultrie County; the Hon.
WARREN A. SAPPINGTON, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted in the circuit court of Moultrie County of the offense of driving a motor vehicle when his license was revoked, in violation of section 6-303(a) of the Illinois driver licensing law (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 6-303(a)). He was sentenced to 10 days' imprisonment and fined $300 and costs.
On appeal, defendant raises four issues: (1) waiver of jury trial; (2) conflict in the licensing statutes; (3) hearsay evidence; and (4) affirmative defense.
The evidence at trial indicated that defendant was involved in a motor vehicle accident on February 8, 1979. A deputy sheriff investigated the accident and testified that, at the time, defendant had a Texas driver's license. The State stipulated that the Texas license was valid. Upon further investigation the deputy discovered that defendant's Illinois license had been revoked. The State introduced evidence at trial that the revocation was made on January 2, 1976, and had been extended to August 9, 1978.
Defendant testified and admitted that he drove the vehicle on February 8, 1979. He further indicated that he had moved from Texas back to Illinois on December 20, 1978. The trial court indicated that since the State had stipulated to the validity of the Texas license, it would presume that defendant was a resident of Texas at the time it was issued. Defendant testified that sometime after he returned to Illinois he went to a driver's licensing station in Effingham and inquired about driving on his Texas license. Someone told him that he could do so. The State objected to the answer as hearsay and the trial court sustained the objection.
Further evidence obtained after a continuation showed that defendant had applied for his Texas license on August 23, 1978. On the application in Texas he indicated that he had an Illinois license through 1979 and that his driving privileges in Illinois were not suspended, revoked, canceled or denied, and that his license in Illinois had never been suspended, revoked, canceled, or denied.
Defendant's first issue is that he was deprived of his right to trial by jury. We note in passing that this alleged error was never called to the trial court's attention for a ruling and no motion for new trial was filed (Ill. Rev. Stat. 1979, ch. 38, par. 116-1). While the issue might be disposed of on this basis (People v. Wright (1980), 80 Ill. App.3d 927, 400 N.E.2d 731), we find stronger evidence of waiver in the actions of defendant and his counsel. A brief recapitulation of the sequence of events is as follows:
March 26, 1979: defendant arraigned with counsel present; plea of not guilty; demand for jury trial; allotted for jury trial in May, 1979.
April 24, 1979: motion by defendant to vacate May setting; continued to August, 1979.
October 17, 1979: cause continued to October 25, 1979, for plea; defense counsel present.
October 25, 1979: motion by defendant for continuance; motion allowed.
January 11, 1980: motion by defendant for continuance; continued to January 22, 1980.
January 22, 1980: motion by the People to allot for bench trial; allotted for February 25, 1980.
January 23, 1980: circuit clerk's proof of notice of bench trial on February 25, 1980, 9:30 a.m. on file.
February 13, 1980: circuit clerk's proof of notice of bench trial continuance from 9:30 a.m. to 1:30 p.m. on February 25, 1980, on file.
February 21, 1980: motion for continuance by defendant; objection of the People; objection overruled; allotted for ...