APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE COLLEEN McSWEENY MOORE, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Wolfson
When a trial Judge takes 60 seconds or so to obtain a valid jury waiver from a defendant in open court the issue we confront in this case does not arise.
We are called on to determine whether this defendant is entitled to an evidentiary hearing on his post-conviction claim that his constitutional right to a jury trial was violated. The trial court denied the defendant's petition, holding no evidentiary hearing was required. We reverse the trial court's decision and remand this cause for an evidentiary hearing under the Post-Conviction Hearing Act.
On March 7, 1990, Ronnie Dockery (Dockery) was arrested and charged with possession with intent to deliver phencyclidine (PCP). The case was called for trial on June 3, 1991. There were three defendants-Dockery, his brother, Gregory Dockery, and Thomas Almore. The Dockery brothers were represented by privately retained attorney Maurice Scott. Defense counsel for Almore was Cheryl Ingram. The colloquy:
"THE COURT: Bench or jury, Mr.Scott? Miss Ingram?
MS. INGRAM: Judge, bench for me. However, there is a motion pending. We are not a party to the motion.
THE COURT: All right. Mr. Scott, you have a motion pending?
THE COURT: We will hear the motion and go into the trial."
After learning the prosecution would need a short period of time, the Court said:
"If you are going to be five minutes, we will put it over to 1:30. Where is Mr. Scott? Mr. Scott, 1:30?
MR. SCOTT: Your Honor, at any rate can I sit down with my client?
THE COURT: Sure. You can talk to them." When the case was called again, Scott said:
"Your Honor, the State indicated they were going to combine the motion and trial simultaneously.
THE COURT: Are you agreeable to it, Miss Ingram?