{
  "id": 3204439,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS NEIL FRENCH, Defendant-Appellant",
  "name_abbreviation": "People v. French",
  "decision_date": "1980-05-16",
  "docket_number": "No. 78-322",
  "first_page": "60",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "396 N.E.2d 841",
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      "year": 1979,
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          "page": "842"
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    {
      "cite": "77 Ill. App. 3d 905",
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      "year": 1979,
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  "last_updated": "2023-07-14T15:36:38.181565+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS NEIL FRENCH, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE SCOTT\ndelivered the opinion of the court:\nThis appeal is taken from the conviction of the defendant, Thomas Neil French, for unlawful delivery of a substance represented to be a controlled substance. Following a bench trial in the circuit court of McDonough County, the defendant was sentenced to two years probation and was fined $750.\nThe sole issue raised on appeal is whether the lack of a formal jury waiver requires reversal of the defendant\u2019s conviction and remandment for a new trial. We hold that it does.\nThe record reveals that the case had twice been placed on the jury calendar before being called for a bench trial on March 3, 1978. In addition, the record contains the following colloquy, which is essential to the consideration of the jury waiver issue:\n\u201cTHE COURT: All right, this is the case of the People of the State of Illinois vs. Thomas Neil French, it is 77-CF-6. Let the record show that the People are present by State\u2019s Attorney Henderson, that the defendant is present with attorney James Patrick Murphy and the case comes on for bench trial, right?\nDEFENSE COUNSEL: That is correct, your Honor.\u201d\nFollowing this exchange, the trial proceeded with no additional references being made to the defendant\u2019s right to a jury trial.\nThe State contends that the defendant has waived the jury trial issue by his failure to raise it in the trial court at any time. We cannot agree. This court has recently determined that even the failure to bring the absence of a jury waiver to the trial court\u2019s attention in a post-trial motion does not waive the issue, since the absence of an effective waiver of a jury trial may be considered plain error. (People v. Walton (1979), 77 Ill. App. 3d 905, 906, 396 N.E.2d 841, 842, citing People v. Banks (1979), 71 Ill. App. 3d 15, 389 N.E.2d 180.) Therefore, the defendant in the present case has not waived the issue by not raising it in the trial court.\nIn Walton the record revealed that the defendant and the assistant State\u2019s attorney were served by the defendant\u2019s attorney with a notice of hearing which specified that a \u201cbench trial\u201d was set for a particular date. This notice was held to be insufficient as a waiver, since, to be effective, a waiver must be expressly and understanding^ made. (People v. Banks (1979), 71 Ill. App. 3d 15, 389 N.E.2d 180.) In the recent case of People v. Bristow (1980), 80 Ill. App. 3d 535, 400 N.E.2d 511, the record revealed that defense counsel did not reply to the trial court\u2019s question as to whether a jury was waived. The Bristow court concluded upon this basis that the defendant had not waived his right to a trial by jury. Likewise, in the present case, we cannot say, based on the indications in the record that the case had twice been placed on the jury calendar and the quoted exchange between the trial court and defense counsel, that the defendant made a knowing and intelligent waiver of his right to a jury trial,\nWhile a defendant may acquiesce in his counsel\u2019s express waiver of a jury trial (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720), no such express waiver is evident in the present case.\nPeople v. Eveland (1980), 81 Ill. App. 3d 97, 400 N.E.2d 1078, which the State cites as controlling here, is distinguishable from the case at bar. The Eveland court, examining the jury trial waiver issue under the plain-error doctrine, found that a knowing waiver was made where the defendant was advised of her right to a jury trial, the case was originally set for a jury trial, and the record contained a letter by defense counsel to the trial court expressing an intention to forego a jury trial. Clearly the record in Eveland presents a much stronger case for finding an intentional and knowing waiver than does the record in the case at bar.\nFor the foregoing reasons, the judgment of the circuit court of McDonough County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nBARRY and STENGEL, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE SCOTT"
      }
    ],
    "attorneys": [
      "Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "John R. Clerkin, State\u2019s Attorney, of Macomb (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS NEIL FRENCH, Defendant-Appellant.\nThird District\nNo. 78-322\nOpinion filed May 16, 1980.\nRobert Agostinelli and G. Joseph Weller, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJohn R. Clerkin, State\u2019s Attorney, of Macomb (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0060-01",
  "first_page_order": 82,
  "last_page_order": 83
}