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06/14/88 the People of the State of v. Terry T. Simmons

June 14, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TERRY T. SIMMONS, DEFENDANT-APPELLANT

"EVERY PERSON ACCUSED OF AN OFFENSE SHALL HAVE THE RIGHT TO A TRIAL BY JURY UNLESS UNDERSTANDINGLY WAIVED BY DEFENDANT IN OPEN COURT." (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 103-6.)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 1269, 171 Ill. App. 3d 325, 121 Ill. Dec. 221 1988.IL.932

Appeal from the Circuit Court of De Kalb County; the Hon. Richard D. Larson, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, Terry Simmons, appeals his convictions and sentence for battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3). Defendant contends that he did not validly waive his right to a jury trial and that his 18-month term of probation is longer than the statutory maximum for this offense.

Defendant was initially charged with two counts of battery. On February 10, 1987, attorney James O'Grady entered his appearance for defendant. The form which O'Grady filed also purported to waive a jury trial in the cause. The docket sheet entry for that date states, "entry of App. by J. O'Grady, [illegible], set for B.T. 3-2-87 at 10:00."

The cause was subsequently continued to April 6, 1987, when the court conducted a bench trial. Defendant was found guilty on both counts and was later sentenced to 12 months' work release and 18 months' probation. Defendant retained new counsel and filed a motion for a new trial alleging that defendant did not knowingly waive his right to a jury trial.

At the hearing on this motion, defendant's evidence consisted of his affidavit and that of Maureen A. Josh, De Kalb County, circuit clerk. Defendant's affidavit stated, in relevant part, that defendant did not enter a plea or waive a jury trial on February 9, 1987; that he did not again appear in court until April 6, 1987; that on that day he did not agree either orally or in writing to waive a jury trial and his attorney did not do so in his presence. Josh's affidavit stated that attorney O'Grady filed his appearance for defendant on February 10, 1987; that on that date defendant's case was not before a Judge of De Kalb County; that the record sheets for the cause reflect that the only mention of a jury waiver was on February 10, 1987, when O'Grady entered his appearance; that an order was filed in the clerk's office on February 19, 1987, continuing the matter for trial to April 6, 1987; and that defendant did not appear in court on that date.

The court denied defendant's motion on the basis that defendant has a criminal record, that defendant did not object on the date of trial, and that if defendant prevailed, the existing practice in De Kalb County would have to be modified. In announcing its decision, the court stated:

"In this case we had a slight deviation from that because defense counsel appeared at the Clerk's office and had a waiver of jury trial rather than appearance and demand for jury trial. It is also the practice in De Kalb County that often defense lawyers appear in court on assigned court dates for their clients and advise the Court verbally, we want a bench trial, we intend to waive jury, or words to that effect and the Court then sets the matter for bench trial without the defendant being present, and that the attorney and his client then come in on the date assigned for bench trial and the case proceeds to trial.

So, the procedure employed in this case is in accordance with our normal practice. Now, that doesn't make it right, but it is in accordance with our normal practice, and if we are to adopt the defendant's position in this case, then we must radically modify our practice by requiring that every criminal defendant who has a court date appear on his court date regardless of whether or not he has an attorney and we must at that time verbally advise him of his right to trial and we must at that time ascertain from him personally that irregardless of the presence or absence of the defendant we should probably memorialize his wishes by having him sign a written jury demand or jury waiver at that time."

Section 103 -- 6 of the Code of Criminal Procedure of 1963 provides:

The trial court has the affirmative duty to see that defendant's waiver of his right to a jury trial is expressly and understandingly made. (People v. Bristow (1980), 80 Ill. App. 3d 535, 537-38.) A defendant does not waive the right by merely remaining silent during trial. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 356.) Furthermore, although defense counsel may waive trial by jury if the defendant does not object, such waiver must be made in the ...


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