APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
543 N.E.2d 269, 187 Ill. App. 3d 436, 135 Ill. Dec. 34 1989.IL.1247
Appeal from the Circuit Court of Cook County; the Hon. Matthew J. Moran, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
Defendant was tried in absentia in a bench trial and found guilty of burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a).) He was then sentenced to two years' probation. He now appeals contending that his conviction should be reversed and a new trial ordered because he was not properly admonished in accordance with section 113-4(e) of the Code of Criminal Procedure of 1963 (hereafter Code) (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(e)); he was never notified of the new trial date by certified mail as required by section 115-4.1(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a)); and the State failed to show by a preponderance of the evidence that his absence from the trial was willful.
The record shows that defendant was arrested on July 22, 1986, and subsequently charged by information with the burglary of Turner Language School in Chicago. At a preliminary hearing held November 7, 1986, the following exchange occurred:
"MR. RONKOWSKI (Prosecutor): Our file does not indicate the defendant has been admonished regarding trial in absentitia [ sic ].
THE COURT: Mr. Coppage, the State is referring to a statute which allows them to try you in your absence if you fial [ sic ] to appear for court. So make sure you make all your court dates."
On March 5, 1987, trial commenced with defendant present and represented by counsel. The stipulated testimony of Mr. Malone was entered, indicating that he was employed by the Chicago Board of Education, which owned the property known as Turner Language School at 9300 South Princeton, and that on July 22, 1986, defendant did not have permission or authority to enter the school or remove property therefrom.
Chicago police officer Mark Fortuna then testified that on July 22, 1986, he had responded to a burglary-in-progress report at the Turner Language School and observed defendant and two other men at an open window on the west side of the school. He testified that he first saw defendant positioned half inside and half outside the window. Defendant then jumped out of the window and ran. He was soon apprehended by two other police officers who had also responded to the call.
Fortuna also testified that defendant agreed to make a statement after being informed of his Miranda rights. Defendant told police that he had not entered the school, although his two friends had done so. He also told police the whereabouts of certain items which had been stolen from the school.
After Fortuna testified the State requested a recess due to the fact that its next witness, Officer Tully, was not present. Shortly thereafter the court learned that Officer Tully would not be available, and the case was continued by agreement to March 13, 1986.
On March 13, 1986, the case was called and defendant was present. However, Officer Tully was still not available and the case ...