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03/20/96 PEOPLE STATE ILLINOIS v. DAVID J. SILAS

March 20, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID J. SILAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 93-CF-2002. Honorable Michael J. Burke, Judge, Presiding.

Released for Publication April 24, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Du Page County, defendant, David J. Silas, was convicted of residential burglary (720 ILCS 5/19--3(a) (West 1994)). Defendant was subsequently sentenced to a term of seven years' imprisonment.

Prior to the stipulated bench trial, defendant motioned to suppress inculpatory statements he made to the Carol Stream police. In the statements, defendant admitted that he entered a house in Carol Stream with the intention of taking money or anything of value that he could sell to obtain drugs. The trial court denied defendant's motion to suppress the statements.

On appeal, defendant contends that we must reverse his conviction because: (1) the trial court erred when it denied his motion to suppress; and (2) he did not sign a written jury trial waiver. We will first consider the jury waiver issue.

Defendant contends that because he did not execute a written jury waiver we must reverse his conviction and remand for a new trial. The State concedes that defendant did not execute a written waiver. However, the State contends that defendant made a voluntary and knowing oral waiver of his right to a jury trial in open court and that any error regarding the absence of a written waiver of this right was therefore harmless. Defendant does not dispute the State's contention that he made a voluntary and knowing oral waiver of his jury trial right in open court. Moreover, defendant concedes that he did not raise the jury waiver issue in his post-trial motion. Nonetheless, defendant asserts that we must reverse his conviction because the absence of a written jury waiver constitutes plain error.

In support of his position, defendant relies on section 115--1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--1 (West 1994)) and the cases which have construed section 115--1 to require the reversal of a conviction in the absence of a written jury waiver. Section 115--1 provides that "all prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing." 725 ILCS 5/115--1 (West 1994).

In People v. Nuccio, 263 Ill. App. 3d 315, 201 Ill. Dec. 722, 636 N.E.2d 1154 (1994), the defendant argued that this court should reverse his conviction because he had not understandingly waived his right to a jury trial. 263 Ill. App. 3d at 316. Relying on section 115--1, we reversed the conviction because the record did not contain a written jury waiver. 263 Ill. App. 3d at 316-17. Nuccio could thus be read to require automatic reversal in cases involving a jury waiver issue where the defendant did not execute a written jury waiver.

In People v. Jennings, 268 Ill. App. 3d 439, 206 Ill. Dec. 146, 644 N.E.2d 1199 (1994), the Appellate Court, Third District, addressed a jury waiver issue and purported to follow Nuccio. In Jennings, the State argued that Nuccio was distinguishable because the defendant in Jennings made a knowing oral jury waiver in open court. 268 Ill. App. 3d at 443-44. The Jennings court rejected the State's argument and held that the court was not free to ignore the plain language of section 115--1 which required a written jury waiver. 268 Ill. App. 3d at 444. The Jennings court also concluded that issues regarding the waiver of a right to trial by jury affected a substantial right and, therefore, under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), should be considered by a reviewing court even if not properly preserved in the trial court. 268 Ill. App. 3d at 444.

In People v. Daniels, 273 Ill. App. 3d 645, 653 N.E.2d 408, 210 Ill. Dec. 503 (1995), the Appellate Court, Fourth District, addressed a jury waiver issue and followed Nuccio and Jennings. The Daniels court expressly concluded that (1) a jury waiver must not only be understandingly made, but must also be in writing; (2) a defendant does not waive a jury waiver issue if he did not file a post-trial motion; and (3) the denial of a defendant's right to a trial by jury is not harmless error because that right is fundamental to the criminal justice system. 273 Ill. App. 3d at 646-47.

Here, the State first contends that Nuccio and Jennings, the cases which defendant primarily relies on, are distinguishable from this case because, unlike this case, neither of those cases involved a stipulated bench trial. Relying on People v. Horton, 143 Ill. 2d 11, 155 Ill. Dec. 807, 570 N.E.2d 320 (1991), the State argues that a written jury waiver should not be required in a stipulated bench trial because a stipulated bench trial is similar to a guilty plea and therefore constitutes an exception to the section 115--1 requirement of a written jury waiver.

The State's reliance on Horton is misplaced. In Horton, the defendant asserted that he was entitled to the admonishments required by Supreme Court Rule 402 (134 Ill. 2d R. 402) because a stipulated bench trial was tantamount to a guilty plea. 143 Ill. 2d at 14. The supreme court determined that a stipulated bench trial where the defendant presents and preserves a defense, such as a suppression issue, is not tantamount to a guilty plea provided ...


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