Appeal from the Circuit Court of the 14th Judicial Circuit, Mercer County, Illinois No. 98--CF--73 Honorable James J. Mesich Judge, Presiding
The opinion of the court was delivered by: Justice Holdridge
Defendant, Bruce L. Fish, was convicted of two counts of reckless homicide (720 ILCS 5/9--3(a), (e) (West 1998)) following a stipulated bench trial. He claims that, inter alia, his convictions should be reversed because admonishments were required under Supreme Court Rule 402 (177 Ill. 2d R. 402) but were not properly given. We reverse and remand for a new trial.
The State charged defendant with two counts of reckless homicide (720 ILCS 5/9--3(a), (e) (West 1998)) and one count of aggravated driving under the influence of alcohol (625 ILCS 5/11--501(a)(2), (d)(1)(A) (West 1998)). He filed a motion to suppress evidence which was denied. He then waived his right to a jury trial and agreed to a stipulated bench trial. The following colloquy occurred while his attorney discussed the necessary arrangements with the judge:
"MR. NATHAN [defendant's attorney]: It's only 15 minutes, judge. The stipulated bench trial is a plea.
MR. NATHAN: I don't want to use the wrong words, but there's no evidence in a stipulated bench trial."
The judge then asked the prosecutor to define the charged offenses and appraise defendant of the possible penalties. Regarding the penalty for reckless homicide, the prosecutor stated only that the offense carried a sentence of 3 to 14 years in the Department of Corrections (DOC). The judge informed defendant that his waiver would forfeit his right to a jury trial and other corresponding rights (e.g., to present evidence and confront the witnesses against him). The judge also stated: "Now do you understand, Mr. Fish, that if you are found guilty based upon this stipulation by the court that you subject yourself to a possible penalty of up to 14 years in the [DOC]?" Defendant replied, "yes."
The prosecutor then recited the facts underlying the charges. According to those facts, defendant was driving while under the influence of alcohol on October 9, 1998. He failed to reduce his speed and caused a crash involving a number of other vehicles. One of the vehicles was occupied by Shirley Matkovic and her grandson Cole, both of whom were killed. Defendant had no insurance on his vehicle, and a subsequent test of his blood revealed .235 grams of ethanol per deciliter.
Defendant's attorney stipulated that the recited facts were sufficient to sustain convictions on the State's charges. However, he moved to dismiss the charge of aggravated driving under the influence of alcohol, asserting that it involved a lesser included offense of reckless homicide. The judge granted the motion, and defendant's attorney stated: "then we *** stipulate that the evidence presented would be the evidence presented in court by the State, and again that it is sufficient to convict." The judge stated for the record that defendant had understandingly waived his rights with knowledge of the charges against him and the possible penalties. Defendant was then found guilty on both reckless homicide charges.
At a subsequent hearing, the judge sentenced defendant to concurrent terms of 14 years in the DOC. The sentence also included restitution to three families totaling $35,646.18, a $5,000 fine, and payment of court costs. Additionally, the sentencing order included a two-year period of mandatory supervised release to be served following defendant's release from the DOC.
Defendant filed post-trial and post-sentencing motions which were denied. He now appeals.
Defendant claims, inter alia, that his stipulated bench trial was tantamount to a guilty plea, and thus that his convictions should be reversed because the judge did not properly admonish him under Supreme Court Rule 402 (177 Ill. 2d R. 402). He asserts that he was prejudiced because, without proper admonishments, his stipulation to the sufficiency of the State's evidence was not freely and voluntarily entered. In response, the State contends that: (1) defendant has waived his claim; (2) his ...