Appeal from the Circuit Court of Mason County; the Hon. Howard
S. White, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Guilty of burglary and theft.
Were the statutory admonitions given?
We must reverse and remand.
Watson raises no question of the sufficiency of the evidence presented at his trial, so no extended recitation of those facts is necessary. But the enumeration of certain procedural occurrences are required to address his claim that he was improperly tried in absentia.
Watson was charged by information with burglary and theft and a warrant for his arrest was issued on June 4, 1981. He was arrested on June 11, but was released on June 15, after posting bond. His case was continued several times until preliminary hearing was held on August 20. There is some conflict in the record, but apparently Watson was not present at the hearing — although he was represented by retained counsel. The trial court nevertheless found probable cause and continued the case until October 22 for arraignment.
Watson did appear with his counsel at arraignment. He entered a plea of not guilty and requested a jury trial. The court accepted the plea and set the matter "for jury trial on the January jury call." He was not, however, admonished of his rights at arraignment. A written order was entered by the court following arraignment and sent by regular mail to Watson which related that the case had been continued until January 11, 1982, for jury trial.
On December 30, 1981, a pretrial conference was held. Watson's counsel was present, but Watson was not. Following the conference, the court entered the following order, which was also sent by regular mail to the defendant:
"* * * this case is hereby set for trial by jury, commencing on January 11, 1982, at 10:00 a.m., all parties, including the Defendant, are ordered to appear at that time for trial by jury. Failure of the Defendant to appear will result in the trial proceeding in his absence, and his case being tried in absentia."
Defendant also failed to appear at his jury trial on January 11, 1982, but was again represented by counsel. After calling the roll of prospective jurors, the trial court advised them as follows:
"Ladies and gentlemen, we have a rather unique situation this morning. This matter called for trial, the defendant, Mr. Earvil Watson, although notified and although he has contacted his counsel, has not appeared this morning. His notice also advised him that if he did not appear that he would be tried in absentia. His counsel is present and it is his counsel's obligation to protect his interest so we will proceed to this trial without the defendant being here. That is going to shorten things up considerably I expect."
At no time before or during trial did defendant's counsel object to trial in absentia. Nor did he ...