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June 23, 1994


Appeal from Circuit Court of McLean County. No. 91CF744. Honorable W. Charles Witte, Judge Presiding.

As Corrected July 15, 1994. Released for Publication July 25, 1994.

Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

In August 1991, following a bench trial, defendant Donna Roberts was convicted of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2), unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 704(e)), unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(e)), and cannabis trafficking (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705.1). Defendant was sentenced to concurrent terms of 10 years, four years, five years, and 10 years, and ordered to pay a $43,600 street-value fine and costs and fees. Defendant appeals. We reverse and remand.

On November 21, 1990, at 11:20 a.m., Officer Jeffrey Gaither stopped a vehicle headed northbound on I-55 in McLean County for crossing the centerline and for a loud exhaust. The driver of the vehicle was Romural Bradley; defendant was a passenger. Defendant gave Officer Gaither her driver's license and remained in the car while Bradley accompanied the officer to the squad car. Sergeant Mike Snyder arrived shortly after the stop.

After Bradley was issued a written warning, Officer Gaither asked Bradley if he had any drugs or guns in the car. Bradley responded that he did not, but he appeared nervous. Consequently, Officer Gaither asked for permission to search the car; Bradley gave his permission. Bradley, Officer Gaither, and Sergeant Snyder returned to the car. Defendant exited the car with her purse, whereupon she was asked by Officer Gaither for permission to search her purse. Defendant gave her purse to Officer Gaither. Officer Gaither searched the purse and found a gun, $1,000 rolled inside a glove, some savings bonds, some loose change, and a pager.

Officer Gaither then proceeded to search the car. In the rear of the car he found a large pillow containing a burlap bag wrapped incellophane and filled with cannabis. It was later stipulated that the cannabis weighed 17,995 grams. Bradley told Officer Gaither the cannabis belonged to him. He also told Sergeant Snyder that the gun was his. However, defendant never denied that the cannabis or gun was hers.

Defendant testified she lived in Chicago at the same residence for the last 12 years, along with her sister and her sister's three children. Defendant's sister is a paraplegic confined to a wheelchair; defendant cares for her. Defendant also has worked for Cook County Department of Building and Zoning for the last seven years. Defendant testified that she was in a relationship with Bradley, that they flew to Texas together, and drove back together in his vehicle. Defendant stated she did not know the pillow contained cannabis. The vehicle was a Chevrolet Suburban, which is a large vehicle. She rode in the front seat and did not smell anything unusual. She also stated that she did not know where the gun found in her purse came from.

Bradley testified he had pleaded guilty. He and defendant were returning from Texas together. He received the cannabis, already packaged and in a pillow case, while in Texas. He stated defendant was not with him when he received the cannabis and he never told her what was in the package. He was to get $5,000 for transporting the cannabis to Chicago. Bradley further testified the gun found in defendant's purse was his, he kept it on the floor of his car and had placed it into defendant's purse without her knowledge when he saw he was being pulled over by the police.

In an untimely filed post-trial motion, defendant for the first time argued she had been denied her right to trial by jury and never waived that right. The trial court, after a hearing on defendant's post-trial motion, found defendant had waived her right to a jury trial. We disagree.

The State contends defendant waived this issue by failing to file her post-trial motions in a timely manner. ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265.) However, the waiver rule is one of administrative convenience rather than one of jurisdiction. Without finding that the issue of jury waiver always merits review, we will review the matter in this case. People v. Smith (1985), 106 Ill. 2d 327, 333, 478 N.E.2d 357, 360, 88 Ill. Dec. 42.

Both the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) guarantee a criminal defendant's right to a trial by jury. The Illinois legislature has codified this right: "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. 1989, ch. 38, par. 103-6.) There is no set formula for determining whether a waiver was made knowingly, and the determination necessarily turns on the particular facts of the case. Smith, 106 Ill. 2d at 334, 478 N.E.2d at 361; People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197, 82 Ill. Dec. 661.

Some cases have held that a waiver made by counsel in the defendant's presence, to which the defendant does not object, may constitute a valid waiver. ( Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197; People v. Murrell (1975), 60 Ill. 2d 287, 290, 326 N.E.2d 762, 764; People v. Tucker (1989), 183 Ill. App. 3d 333, 335, 539 N.E.2d 243, 244-45, 131 Ill. Dec. 890.) However, these cases require some affirmative statement by defendant's attorney, in his presence, that the defendant wishes not to exercise his right to a jury trial and, instead, chooses a bench trial. ( Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197.) In Frey, the attorney indicated to the court in the ...

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