Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Nos. 91-CF-625, 91-CF-798 & 93-CF-29.
Released for Publication May 9, 1996. The Publication Status of this Document has been Changed by the Court from Published to Unpublished (May 1, 1996).
Present - Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice, Holdridge, P.j., dissenting, and Slater, J., concurring. Justice Holdridge, dissenting in part and concurring in part:
The opinion of the court was delivered by: Lytton
The Honorable Justice LYTTON delivered the opinion of the court:
The defendant, William Farmer, was convicted of two counts of unlawful possession of a controlled substance in case numbers 91-CF-625 and 91-CF-798. (720 ILCS 570/401 (West 1992).) He was placed on two concurrent 12-month terms of probation. Subsequently, in case number 93-CF-29 he was convicted of unlawful possession of cannabis and unlawful possession of a controlled substance with intent to deliver. (720 ILCS 550/4, 570/401 (West 1994).) As a result of the latter conviction, his probationary terms were revoked in 91-CF-625 and 91-CF-798 and he received prison sentences in those cases. On appeal, the defendant does not contest the revocations of probation or the accompanying sentences. He only contests his convictions in 93-CF-29.
The defendant's sole argument on appeal is that his convictions must be reversed and the cause remanded because he did not make a written waiver of jury trial. The State responds that the defendant waived this issue, a written jury waiver was not required, the statute requiring written waivers is unconstitutional, and any error was harmless.
The right to a jury trial is a substantial right, the waiver of which this court will consider even when the issue is not properly preserved for appeal. ( People v. Jennings (1994), 268 Ill. App. 3d 439, 644 N.E.2d 1199, 206 Ill. Dec. 146; see also People v. Daniels (1995), 273 Ill. App. 3d 645, 653 N.E.2d 408.) Section 115-1 of the Code of Criminal Procedure of 1963 provides that all criminal trials shall be tried before a jury unless the defendant waives a jury trial in writing. (725 ILCS 5/115-1 (West 1994).) The statute is mandatory. ( People v. Nuccio (1994), 263 Ill. App. 3d 315, 636 N.E.2d 1154, 201 Ill. Dec. 722.) The statute insures that a defendant's personal right to waive a jury trial is not lightly relinquished, and it is not unconstitutional. ( Jennings, 268 Ill. App. 3d 439, 644 N.E.2d 1199, 206 Ill. Dec. 146.) For these reasons, we reject the State's arguments.
The defendant's convictions in 93-CF-29 are reversed, and the cause is remanded for a new trial. The judgment is otherwise affirmed.
Affirmed in part; reversed in part and remanded.
HOLDRIDGE, P.J., dissenting, and SLATER, J., concurring.
The Honorable Justice HOLDRIDGE, dissenting in part and concurring in part:
I respectfully dissent from the majority's reversal of the defendant's conviction. For the reasons I stated in People v. Tooles (March , 1996), No. 3-94-0627, I believe that a trial court's failure to secure a written jury waiver can be harmless error. Here, as in Tooles, I would find that the failure to obtain a written jury waiver was harmless beyond a reasonable doubt. I would therefore affirm the conviction on that basis.
I concur in the holding that the judgment is ...