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11/26/97 PEOPLE STATE ILLINOIS v. JERRY R. SCOTT

November 26, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JERRY R. SCOTT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Wayne County. No. 94-TR-1937. Honorable Alice M. Jordan, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Kuehn, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

After a bench trial, the defendant, Jerry R. Scott, was found guilty of driving under the influence of alcohol. Defendant was sentenced to two years' probation. On appeal, defendant argues that his conviction must be reversed because he did not waive his right to a jury trial in open court, where the only purported waiver was a document submitted to the court outside his presence and where neither the defendant nor his attorney was addressed upon the right of a trial by jury or the waiver of that right in defendant's presence.

In Illinois, there are two statutes that govern a criminal defendant's rights to receive or waive a trial by jury. Section 103-6 of the Code of Criminal Procedure of 1963 (Code) provides, in relevant part:

"Every person accused of an offense shall have the right to a trial by jury unless (i) understandingly waived by defendant in open court *** ." 725 ILCS 5/103-6(i) (West 1992).

Section 115-1 of the Code provides for the method by which a defendant may waive his right to a jury trial.

"Method of Trial. 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 1992).

The State initially contends that defendant has waived the issue for appeal by failing to make any objection at trial and by failing to file any posttrial motion. Our supreme court recently addressed waiver where the issue is whether the failure to secure a written jury waiver was reversible error. Our supreme court held that the waiver rule is one of administrative convenience and is not jurisdictional. People v. Tooles, 1997 Ill. LEXIS 445, *3, Nos. 80995, 80997, & 81002 cons. (October 17, 1997). Our supreme court declined to rule that in every case the failure to secure a written jury waiver warrants review under the plain error rule. Tooles, 1997 Ill. LEXIS 445, *3. In Tooles, the supreme court noted that section 115-1's written jury waiver requirement does not impact a defendant's constitutional right to choose whether to have a jury trial, but the writing requirement merely memorializes the decision to exercise this right. Tooles, at *5. In the case at bar, this court is considering whether that right was knowingly and understandingly waived. Defendant cannot waive the admonishment of his right to a jury trial if he has not been advised in open court as to that right. A lack of a knowingly and understandingly entered waiver of a jury trial has constitutional ramifications. We will consider the merits of the issue. See People v. Mueller, 281 Ill. App. 3d 1, 3, 666 N.E.2d 915, 917, 217 Ill. Dec. 246 (1996).

The following document, filed on December 29, 1994, is contained in the record on appeal. "IN THE CIRCUIT COURT FOR THE 2D JUDICIAL CIRCUIT WAYNE COUNTY, ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS

VS. 94-TR-1937

JERRY R. ...


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