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07/24/97 PEOPLE STATE ILLINOIS v. JOHN EYEN

July 24, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN EYEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 95--DT--1274. Honorable George J. Bakalis, Judge, Presiding.

Released for Publication August 29, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Colwell and Rathje, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

Defendant, John Eyen, was charged by complaint with the offense of driving while under the influence of alcohol (625 ILCS 5/11--501 (West 1994)). Following a bench trial, the trial court convicted defendant and sentenced him to one year of conditional discharge; 30 days in the county jail, subject to a motion to vacate; counseling; attendance at a victim impact panel; and a fine of $300. On appeal, defendant argues that we must reverse his conviction because (1) the trial court did not obtain a proper waiver of defendant's right to a jury trial; and (2) the State failed to establish defendant's guilt beyond a reasonable doubt. We reverse and remand.

We will consider the jury waiver issue first. Defendant argues that he never executed a written jury waiver and that the absence of a written jury waiver mandates a reversal of his conviction. The State concedes that defendant did not execute a written jury waiver. The State argues, however, that the absence of a written jury waiver constitutes harmless error.

On December 13, 1995, the prosecutor and an unidentified attorney representing defendant appeared before the trial court for a pretrial hearing. The report of proceedings reveals that defendant was not present on this date. During this hearing, the unidentified attorney suggested a trial date of late February and requested a bench trial. The trial court set the matter for a bench trial on February 29, 1996.

On February 29, 1996, the matter came up for the bench trial. The report of proceedings shows that defendant was present on this date. Prior to the bench trial commencing, and while defendant was present, the following exchange occurred:

"THE COURT: On Eyen, are you ready, State?

MR. ELWARD [Assistant State's Attorney]: Yes, we are ready.

THE COURT: Mr. Lynch, are you ready?

Mr. LYNCH [Defense Counsel]: Ready, Judge, yes."

The trial court then invited the prosecutor to call his first witness, and a bench trial commenced.

On April 10, 1996, the parties appeared before the trial court on defendant's motion to reconsider verdict or in the alternative motion for a new trial. The motion argued in part that the trial court had not obtained a valid jury waiver from defendant. The trial court denied the motion and sentenced defendant. Following sentencing, the trial court noticed that the file did not contain a written jury waiver. The trial court asked defense counsel whether defendant would be willing to sign a jury waiver that ...


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