dissenting:
I cannot agree with my colleagues’ position on the waiver of trial by jury issue. Since the issue is the basis of the reversal, I dissent. Nowhere in the record or the briefs does the defendant make an affirmative allegation that the trial judge failed to admonish him of his right to a trial by jury or that he did not knowingly and understandably waive his right to a jury trial. The defendant merely claims the record does not reflect that he waived a jury trial.
In People v. McCarty (1981), 101 Ill. App. 3d 355, this court was faced with a similar argument concerning a record silent on the defendant’s waiver of counsel. I noted in my dissent that lacking an affirmative allegation of error by the defendant, the inference that the trial judge discharged his duties in a constitutional fashion should remain intact. 101 Ill. App. 3d 355, 361.
The presiding judge in the instant case, Judge Wimbiscus, is an experienced trial judge of many years and is undoubtedly well aware of a defendant’s right to a jury trial. It is difficult to believe that Judge Wimbiscus would proceed to a bench trial in the absence of a jury trial waiver.
In the instant case, the record does not contain any docket entries. Also, the record of proceedings consists only of a clerk’s summaries and a transcript of the trial. Consequently, the report of the proceedings is incomplete and does not purport to cover any proceedings prior to trial. The common law record does contain, however, a “notice to appear for a bench trial.” This notice is evidence that the defendant waived his right to a jury trial.
In People v. Oatis (1977), 47 Ill. App. 3d 229, the court was faced with operative facts identical to the instant case: the defendant was tried for a misdemeanor (there is no statutory or constitutional requirement that such proceedings be transcribed (People v. Hopping (1975), 60 Ill. 2d 246, appeal dismissed (1975), 423 U.S. 907, 46 L. Ed. 2d 136, 98 S. Ct. 209; People v. Malley (1982), 103 Ill. App. 3d 534)); the defendant chose to argue the record was insufficient to show waiver of a jury trial, rather than affirmatively allege he did not waive his right to a jury; the report of proceedings was incomplete; and, the common law record evidenced a waiver of jury by the defendant (the record contained a written jury waiver signed by the defendant). The Oatis court determined that “in a criminal case when the common law record shows that the defendant has waived a jury trial, on appeal after a bench trial, a defendant claiming error in the jury waiver must cite the specific error that occurred and substantiate that claim by the presentation of a sufficient record.” People v. Oatis (1977), 47 Ill. App. 3d 229, 232; see also People v. Hamilton (1978), 64 Ill. App. 3d 276, 278; compare People v. Banks (1979), 71 Ill. App. 3d 15, 17 (record was complete).
In the instant case, we have a common law record, in the form of a notice to appear for a bench trial, which suggests the defendant waived the jury. Although this notice is not as conclusive as a written jury waiver, I believe it is sufficient to place the burden upon the defendant to cite specific error and substantiate that claim by the presentation of a sufficient record. Otherwise, this court is placing form over substance. By relying upon an incomplete record to prove the absence of a waiver, the majority would reverse even if the defendant did in fact waive his right to a jury trial.
Again, in light of the common law record evidencing a jury waiver, the absence of a specific affirmative allegation that the defendant did not waive his right to a jury trial, and the defendant’s failure to present a record sufficient to show whether error did in fact occur, I would affirm the conviction. Therefore, I respectfully dissent.