Appeal from the Circuit Court of McLean County; the Hon.
William D. DeCardy, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty at a bench trial in the circuit court of McLean County of the offense of battery in violation of section 12-3 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 12-3.) He was sentenced to 12 months' probation conditioned upon six months in the county jail.
No issue is raised as to reasonable doubt and therefore the facts become immaterial on appeal. The sole issue in this court is the validity of the defendant's jury waiver. We find it void and reverse the conviction.
Some procedural history is required for an understanding of the issue on appeal. Defendant was charged by information on March 3, 1983. He was served with a copy of the information on that date and the matter was set for pretrial on April 11, 1983. On the following day, March 4, 1983, counsel entered appearance on behalf of the defendant. The docket shows that the pretrial was held and the case apparently assigned for the next jury calendar, although no transcript of the proceedings appears in the record.
The next docket entry is that of June 27, 1983, and appears to be the trial date. It shows that defendant failed to appear and a warrant was ordered to issue. It was returned July 14, 1983, at which time defendant appeared in the custody of the sheriff, bond was fixed and bail posted, and the cause continued to the next available jury setting.
On September 6, 1983, a document was filed by the circuit clerk as follows:
"The undersigned defendant in the above entitled cause, comes now in open court in (his) own proper person, acknowledges receipt of copy of complaint in due time, acknowledges admonition by the Court as to effect of this plea, for plea herein says that (he) is
guilty/not guilty in manner and form as charged in said complaint, and waives/ demands a jury in said cause." (Strikeovers and underscoring in original; script in parentheses, balance in print.)
The document bears the signature "Kenneth Williams."
The docket entry on that date states: "Jury waiver filed. Cause set for BT on 10-3-83 @ 9:00 a.m. Mr. Banford to notice State."
Counsel on appeal has supplemented the record with a document entitled "Bystanders Report of Filing of Jury Waiver." It was executed by the trial judge and states in substance that the waiver was filed with the trial judge's secretary by defendant's trial counsel and that defendant himself was not present at the time.
The case then proceeded through trial on October 3 and sentencing hearing on November 2, 1983. A further hearing on stay of sentence pending appeal was held on December 2, 1983. At no time during these proceedings was the question of the jury waiver raised by either the defendant or his counsel.
Section 103-6 of the Code of Criminal Procedure of 1963, implementing the constitutional guaranties of jury trial, provides:
"Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." Ill. Rev. Stat. 1981, ch. 38, par. 103-6.
• 1 The statute is plain on its face and contains two requirements for a valid waiver: (1) that it be in open court, and (2) that it be understandingly made. These principles were interpreted in People v. Oatis (1977), 47 Ill. App.3d 229, 361 N.E.2d 1146. In that case the defendant proceeded through a pro se bench trial and on appeal maintained that his jury waiver was not understandingly made in open court. The court held that the defendant had not presented a sufficient record to demonstrate error and hence affirmed the conviction. However, the court also stated, "If the record shows that the waiver was not ...