People v. Smith
| Decision Date | 21 May 1973 |
| Docket Number | No. 72--291,72--291 |
| Citation | 296 N.E.2d 628,11 Ill.App.3d 423 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald M. SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Franklin S. Wallace, Rock Island, for defendant-appellant.
William Dueringer, Asst. State's Atty., Rock Island County, Rock Island, for plaintiff-appellant.
Defendant Donald M. Smith appeals to this court from a finding of guilty in a non-jury trial for the offense of driving while under the influence of intoxicating liquor as a result of which defendant was sentenced to a fine of $150 plus costs, by the circuit court of Rock Island County. The defendant initially was charged with 'driving while under the influence of liquor'. The attorneys for defendant, by letter, waived the defendant's right to a jury trial. At the time the case was set for trial and prior to the commencement of trial, the State moved to amend its complaint to 'driving while under the influence of Intoxicating liquor'. (Emphasis added.) This amendment was allowed by the court over objection by defendant. Defendant then requested a continuance to the amended charge and further demanded a jury trial on the amended charge. This was done with considerable emphasis. The defense counsel in fact advised the court in the argument relating to objection to the amended charge that if the amendment was granted, defendant wished to have a jury trial on the charges as amended by the State. Defense counsel stated to the court that counsel felt that the initial charge was improper and that the defendant wished to have a jury trial if the court would permit the amendment. The court allowed the amendment and overruled the request for a jury trial and the request of defendant to withdraw the waiver of jury.
The question, therefore, before the court on appeal on this issue is whether defendant understandingly waived a jury trial and, if so, whether the trial court committed reversible error in refusing defendant a jury trial, as a consequence of the action of the State in amending the charge against defendant. We agree with the prosecution that the case of People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, has overruled such cases as People v. McGraw, 115 Ill.App.2d 444, 253 N.E.2d 518; People v. Brownlow, 114 Ill.App.2d 458, 252 N.E.2d 685, and People v. Turner, 80 Ill.App.2d 146, 225 N.E.2d 65, insofar as the requirement of admonition by the court is concerned. For the reason that defendant is presumed to speak through his attorney and is bound by the attorney's actions, however, we believe that the instant case presents an unusual situation. In the cause before us, the waiver of jury trial apparently was made for the purpose of taking advantage of what counsel for defendant believed was a technical failure in connection with the charge in omitting the word 'intoxicating' before the word 'liquor' in the charge. When the request was made to amend such charge by the prosecutor, the defense counsel made clear to the court that defendant desired a trial by jury in the event the charge was amended, and requested such jury trial when the amendment was allowed, all prior to commencement of the trial. The court denied the request on the premise that the charge had not been altered sufficiently to surprise defendant. At issue, however, was whether defendant's counsel felt that defendant was confronted with a purely legal question arising from a deficiency in the charge. The circumstance that defense counsel may have been wrong in such conclusion, should not in itself bar defendant from a timely assertion of a request for a trial by jury.
It is true that this request is addressed to the sound discretion of the trial court but it is likewise true that the trial court's discretion should be exercised reasonably and that the present situation created an unusual set of facts which should raise a...
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People v. Flores
...to withdraw his guilty plea. (People v. Norris (1978), 62 Ill.App.3d 228, 233, 19 Ill.Dec. 565, 379 N.E.2d 80; People v. Smith (1973), 11 Ill.App.3d 423, 425, 296 N.E.2d 628.) However, the record belies defendant's assertion that his jury waiver was based on his belief that the State would ......
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People v. Chapple
...sometimes entitle a defendant to withdraw a jury waiver. The circumstances here did not require such a result. In People v. Smith, 11 Ill.App.3d 423, 296 N.E.2d 628 (1973), the third district held the trial court committed reversible error in denying the defendant's motion to withdraw his j......
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People v. Spain
...defendant was unaware of damaging evidence against him at the time of the waiver. Another case cited by defendant, People v. Smith (1973), 11 Ill.App.3d 423, 296 N.E.2d 628, is also distinguishable. There, defendant was initially charged with "driving while under the influence of liquor" an......
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People v. Williams
...argument that his motion to withdraw his waiver or for a mistrial would have been granted, the defendant cites to People v. Smith, 11 Ill.App.3d 423, 296 N.E.2d 628 (1973). In Smith, the defendant waived his right to a jury based on what his counsel believed was a technical defect in the ch......