                              No. 3--05--0219
                    Filed February 10, 2006
_________________________________________________________________

                               IN THE

                               APPELLATE COURT OF ILLINOIS

                               THIRD DISTRICT

                               A.D., 2006

THE PEOPLE OF THE STATE           )   Appeal from the Circuit Court
OF ILLINOIS,                      )   of the 21st Judicial Circuit,
                                  )   Kankakee County, Illinois,
     Plaintiff-Appellee,          )
                                  )
                                        )
     v.                         ) No. 04--TR--26004
                                )
KARLTON S. HARRIS,              ) Honorable
                                ) J. Scott Swaim,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

JUSTICE O=BRIEN delivered the opinion of the court:
_________________________________________________________________

     Defendant, Karlton S. Harris, was convicted by the trial

court of failure to yield turning left (625 ILCS 5/11--902 (West
2004)).   The trial court sentenced Harris to 12 months' court

supervision and ordered him to pay $159 in fines and court costs.

 Harris appeals pro se, arguing that he did not knowingly and

intelligently waive his right to a jury trial.    We reverse and

remand for further proceedings.

                            BACKGROUND

     The evidence adduced at trial showed that on December 23,

2004, Harris was charged by uniform citation and complaint with

the offense of failure to yield turning left (625 ILCS 5/11--902

(West 2004)).   Harris completed the back of the uniform citation
and complaint and mailed it to the trial court.       On the back of

the citation, Harris indicated that he intended to plead not

guilty to the offense.   By checking the appropriate box on the

citation, he indicated that he desired to have a bench trial.

     Harris represented himself pro se at the bench trial.         The

trial court found Harris guilty.       The court later sentenced

Harris to 12 months' supervision and $159 in fines and court

costs.

     Harris filed a motion for new trial.       At the hearing on his

motion, Harris argued that before he mailed the uniform citation

and complaint to the court, he consulted a legal self-help book

on the matter.   He claimed that the book stated that a jury trial

was not possible in traffic cases in Illinois.       Thus, he checked

the box on the back of the citation indicating that he wanted a

bench trial.   The trial court denied Harris' motion, finding that

Harris knowingly waived his right to a jury trial by checking the

box on the back of the citation marked "Trial by Judge," rather

than the box marked "Trial by Jury."

     Harris appeals his conviction and sentence.

                             ANALYSIS

     On appeal, Harris seeks remand for a new trial on the basis

that he did not understandingly waive his right to a jury trial

in open court.   Specifically, he argues that the trial court

failed to admonish him as to his right to a jury trial before

proceeding with the bench trial.

     Initially, the State argues that Harris waived this issue on


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appeal for failure to preserve it in the trial court.    Though

Harris raised this issue in his motion for new trial, he failed

to object to the bench trial.    However, a defendant's failure to

question the validity of the jury waiver in the trial court, by

both a timely objection and a posttrial motion, does not result

in a forfeiture of the issue on appeal.   People v. Bracey, 213

Ill. 2d 265, 821 N.E.2d 253 (2004).   A criminal defendant has a

fundamental right to a trial by jury, and the issue of whether

that right has been violated may be considered under the plain

error rule.   Bracey, 213 Ill. 2d 265, 821 N.E.2d 253.
     On the merits, the State acknowledges that Harris had a

statutory right to a trial by jury.   725 ILCS 5/103--6 (West

2004); People v. Flessner, 48 Ill. 2d 54, 268 N.E.2d 376 (1971);

People v. Woerly, 50 Ill. 2d 327, 278 N.E.2d 787 (1972).     A

defendant validly waives his right to a jury trial only if made

(1) understandingly and (2) in open court.   725 ILCS 5/103--6

(West 2004); People v. Scott, 186 Ill. 2d 283, 710 N.E.2d 833

(1999); Woerly, 50 Ill. 2d 327, 278 N.E.2d 787 (court held that

section 103--6 applies to traffic offenses).   It is the trial

court's duty to ensure that a defendant's waiver of his right to

a jury trial is made understandingly.   People v. Smith, 106 Ill.
2d 327, 478 N.E.2d 357 (1985).    However, the validity of a jury

waiver cannot rest on any precise formula but, rather, depends on

the facts and circumstances of each particular case.     In re

R.A.B., 197 Ill. 2d 358, 757 N.E.2d 887 (2001).   Where, as in the

instant case, the facts are not in dispute, the question of


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whether a defendant validly waived his right to a jury trial is

one of law subject to de novo review.       R.A.B., 197 Ill. 2d 358,

757 N.E.2d 887.

     In the instant case, the trial court did not question Harris

about waiving his right to a jury trial.      Harris simply answered

"Yes, sir" to the question of whether he was ready for trial.       At

the hearing on Harris' motion for new trial, the trial court

found that by marking the box labeled "Trial by Judge," rather

than the box labeled "Trial by Jury," Harris validly waived his

right to a jury trial.   Thus, the issue before us is whether, by

selecting a bench trial on the back of the uniform citation,

Harris made an understanding waiver of his right to a jury trial

in open court.    This issue appears to be one of first impression

in Illinois.

     Supreme Court Rule 505 is the source of the language printed

on the back of the uniform citation and complaint.      166 Ill. 2d

R. 505.   Rule 505 provides for an expeditious disposition of

charges brought by uniform citation and complaint.      People v.
Nelson, 18 Ill. App. 3d 628, 310 N.E.2d 174 (1974).      The Rule

promotes efficient administration of justice for the court and

convenience for the accused, who may reside some distance away,

by avoiding multiple court appearances.      Nelson, 18 Ill. App. 3d

628, 310 N.E.2d 174.   It also promotes efficiency for law

enforcement agencies by preserving freshness of evidence and

memory of the arresting officer.       People v. Mears, 84 Ill. App.

3d 265, 405 N.E.2d 443 (1980).     However, we find nothing in the


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Rule that states that a defendant's completion of the back of the

uniform citation to request a bench trial serves as a substitute

for that defendant's understanding waiver of his right to a jury

trial in open court.

      We recognize that the efficient process of traffic offenses

is necessary to do justice.           We also understand the State's

concern about allowing a defendant to complain about the

deprivation of his right to a jury trial after he stood by

silently and participated in a bench trial, which resulted in a

conviction.     Defendants should not be allowed to gamble on the

outcome.    People v. Novotny, 41 Ill. 2d 401, 244 N.E.2d 182

(1968).    However, our research into statutory and case law on

this issue did not reveal any exception to the jury waiver rule

for traffic offenses.         Harris did not make any statement in court

about whether he understood his right to a jury trial and chose

to waive that right.        Therefore, we hold that Harris did not

understandingly waive his right to a jury trial in open court.

                                    CONCLUSION

      For the reasons stated, we reverse the judgment of the circuit court of Kankakee

County and remand the cause for further proceedings.

      Reversed and remanded.

      HOLDRIDGE and MCDADE, JJ., concurring.




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