People v. Gaston
| Decision Date | 14 June 1971 |
| Docket Number | Gen. No. 70--212 |
| Citation | 270 N.E.2d 846,132 Ill.App.2d 900 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie GASTON, Jr., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
E. Roger Horsky, Ill. Defender Project, Elgin, Morton Zwick, Ill. Defender Project, Chicago, for defendant-appellant.
Philip G. Reinhard, State's Atty., K. Craig Peterson, Asst. State's Atty., Rockford, for plaintiff-appellee.
Upon a negotiated plea of guilty, defendant was sentenced to a term of 1--5 years and appeals on the sole contention that he did not expressly and understandingly waive his right to a trial by jury.
In a two count indictment, defendant was charged with robbery and mob action. At the time, he was on probation for having committed a felony. On arraignment, he entered a plea of not guilty and thereafter, he, his counsel and the State, entered into plea bargaining. On August 3, 1970, in open court, he withdrew his plea of not guilty, and the court was informed that the parties had negotiated a plea agreement. The agreement, related by the prosecutor, was that upon a plea of guilty to count II (mob action), the State would dismiss count I (robbery), and agree to a sentence of from 1--5 years. The defendant was asked if he had discussed the plea with his attorney and responded, 'Yes.' The court further inquired, 'Is there anything about it you don't understand,' and the defendant replied, 'No.' The prosecutor then related the factual basis of the offense and the court entered sentence.
Except for a written waiver of jury signed by the defendant, the record is Completely silent with respect to the defendant's right to a jury trial. This, alone, would have been reversible error were it not for the written waiver. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Long prior to Boykin, our Supreme Court, in People v. Fisher, 340 Ill. 250, 265, 172 N.E. 722, 728 (1930), stated:
See also, People v. Brown, 267 N.E.2d 16 (Ill.App.1970) and People v. Garner, 267 N.E.2d 38 (Ill.App.1971).
However, there remains the question of whether the signed jury waiver, in and by itself, was sufficient to result in a relinquishment of the defendant's constitutional right to jury trial.
We told that it was not.
To constitute a proper jury waiver, the record must affirmatively show (1) and expression on the part of the defendant that he desires to reject his right to be tried by a jury and (2) that he do so...
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People v. Kilfoy, s. 83-75
...waivers could not be regarded as having been made understandingly and voluntarily. In primary support, they cite People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846, and People v. Rambo (1970), 123 Ill.App.2d 299, 260 N.E.2d Both cases are distinguishable. In Gaston, the defendant e......
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People v. Losacano
... ... Gaston, 132 Ill.App.2d 900, 270 N.E.2d 846 and People v. Rambo, 123 Ill.App.2d 299, 260 N.E.2d 119 which have referred to and applied the well settled rule that at least in contested cases waiver of trial by jury will not be presumed and such waiver must be expressly and understandingly made before the ... ...
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People v. Villareal
... ... 105 Ill.App.3d 459, 462, 61 Ill.Dec. 352, 434 N.E.2d 505; People v. Montgomery (1981), 96 Ill.App.3d 994, 999, 52 Ill.Dec. 545, 422 N.E.2d 226; People v. Rettig (1980), 88 Ill.App.3d 888, 889, 44 Ill.Dec. 7, 410 N.E.2d 1099; People v. Gaston (1971), 132 Ill.App.2d 900, 901, 270 N.E.2d 846; People v. Bradley (1970), 131 Ill.App.2d 91, 93, 266 N.E.2d 469 ... Here, after informing the accused that he had been charged with battery and two counts of resisting a peace officer, the trial court asked the defendant whether he ... ...
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...1022, 304 N.E.2d 111. Defendant has cited People v. Spates (1971), 132 Ill.App.2d 902, 270 N.E.2d 848, and People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846. Neither of these cases are applicable to the facts before as the only evidence therein was solely a written jury waiver, wi......