People v. Burk
State: Illinois
Court: 3rd District Appellate
Docket No: 3-95-0472
Case Date: 06/27/1997
No. 3--95--0472
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 21st Judicial Circuit,
) Iroquois County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 91--CF--16
)
ROBERT BURK, ) Honorable
) Robert L. Dannehl,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
________________________________________________________________
The defendant, Robert Burk, appeals from an order denying
his application showing recovery under the Sexually Dangerous
Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West 1994)).
The sole issue on review is whether the trial court erroneously
denied the defendant a jury trial. We reverse and remand.
FACTS
The defendant was adjudicated a sexually dangerous person on
April 2, 1992, and committed to the Department of Corrections
(DOC) (725 ILCS 205/8 (West 1994)). He appealed. The Appellate
Defender moved to withdraw as counsel for the defendant, and this
court affirmed pursuant to Anders v. California, 386 U.S. 738, 18
L. Ed. 2d 493, 87 S. Ct. 1396 (1967). People v. Burk, No. 3--92-
-0349 (1993) (unpublished order under Supreme Court Rule 23).
The defendant subsequently filed numerous pro se pleadings,
including several applications showing recovery. 725 ILCS 205/9
(West 1994). On May 23, 1994, defendant filed a package of
pleadings, including a recovery application, a motion for jury
trial, a motion for appointment of counsel and a request for an
independent psychiatric examination. Counsel was appointed, and
a socio-psychiatric examination was ordered. The State
subsequently moved to strike and deny the May 23 application
showing recovery.
The record shows that the court and the parties were aware
of the defendant's pro se jury demand. It also shows that the
defendant did not waive his right to a jury either orally or in
writing. Nonetheless, on May 3, 1995, the matter proceeded to a
hearing before the court without a jury.
The State relied on reports filed by the DOC and an
independent psychiatrist, Dr. Dusan Gojkovich. Although the
DOC's psychiatrist noted some progress, both the DOC and Dr.
Gojkovich concluded that the defendant remained sexually
dangerous at the time of their reports. The defendant and his
mother testified on the defendant's behalf. After arguments of
counsel, the court granted the State's motion to strike, denied
the application showing recovery and remanded the defendant to
the DOC.
DISCUSSION AND ANALYSIS
On appeal, the defendant contends that the court should have
granted him a jury trial. The State argues that the defendant
waived a jury trial when he failed to reassert his right at the
hearing on his petition. We agree with the defendant.
Proceedings under the Act are civil in nature. 725 ILCS
205/3.01 (West 1994). However, certain protections available to
criminal defendants are granted to persons under the Act due to
the loss of liberty that a commitment entails. People v. Bailey,
265 Ill. App. 3d 758, 639 N.E.2d 1313 (1994). One such
protection is the right to demand a jury trial. 725 ILCS 205/5
(West 1994). The right to a jury under the Act extends to
applications showing recovery. People v. Shiro, 52 Ill. 2d 279,
287 N.E.2d 708 (1972). When a defendant demands a jury, his
request must be honored unless the defendant later knowingly
waives his right to a jury. People v. Olmstead, 32 Ill. 2d 306,
205 N.E.2d 625 (1965).
In support of its position that the defendant waived his
right to a jury trial by failing to reassert his demand, the
State cites People v. Cash, 282 Ill. App. 3d 638, 668 N.E.2d 1198
(1996). In Cash, as here, the defendant filed a motion for jury
trial with his application showing recovery. The cause proceeded
to a hearing by the court without a jury, and Cash stipulated to
a report of the DOC without offering any evidence in support of
his application. The trial court denied the application. On
appeal, the court found no reversible error. Applying principles
of civil law, the court ruled that the defendant waived his jury
demand when he failed to object at the hearing; and, in any
event, the State would have been entitled to a directed verdict
had the cause been tried to a jury. Cash, 282 Ill. App. 3d at
640-41, 668 N.E.2d at 1200.
Even were we to agree that the court reached a proper result
in Cash, its holding does not justify the denial of a jury trial
here. Unlike Cash, there was some evidence in this case that the
defendant was improving. The defendant presented testimony. He
did not stipulate to evidence against him, but resisted the
State's motion to strike, and it is not clear that the State
would have been entitled to a directed finding. See Cash, 282
Ill. App. 3d at 641, 668 N.E.2d at 1200 (citing Pedrick v. Peoria
& Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967)).
The Act contains no provision for dismissing applications
showing recovery, however frivolous, without a hearing. See 725
ILCS 205/9 (West 1994). If a jury is demanded, the court has no
discretion to hear the cause without one. People v. Abney, 90
Ill. App. 2d 235, 232 N.E.2d 784 (1967). We have previously
noted that the statutory scheme imposes a significant burden on
this State's limited judicial resources. See People v. Tunget,
No. 3--95--0781 (April 8, 1997). However, for purposes of this
case, we must conclude that the Act was violated by conducting a
bench trial without the defendant's knowing waiver of a jury.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Iroquois County is reversed, and the cause is remanded for
further proceedings.
Reversed and remanded.
SLATER and MICHELA, JJ., concur.
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