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SECOND DIVISION
June 29, 2004

JUSTICE BURKE delivered the opinion of the court:

Following a bench trial, defendant Kenneth Elders wasconvicted of possession of a controlled substance with intent todeliver within 1,000 feet of a public park and was sentenced toseven years' imprisonment. On appeal, defendant contends: (1) hedid not validly waive his right to a jury trial; (2) he was deniedeffective assistance of counsel because counsel failed to informhim of a plea offer made by the State; (3) the State failed toprove him guilty beyond a reasonable doubt because it failed toestablish defendant's intent to deliver; (4) the stipulatedtestimony of the forensic chemist did not sufficiently establishthat the substance recovered from defendant was cocaine; and (5) hewas not properly admonished pursuant to Supreme Court Rule 605(a)((Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605,eff. October 1, 2001)). For the reasons set forth below, wereverse and remand this cause for a new trial.

Defendant was arrested on November 24, 2001, at approximately4:43 a.m., after police officers conducted a surveillance andobserved him engaging in suspected narcotics transactions. OnDecember 26, 2001, defendant was indicted on three counts ofpossession of a controlled substance with intent to deliver--countI alleged defendant did so within 1,000 feet of a school, count IIalleged defendant did so within 1,000 feet of a public park, andcount III was general.

On March 11, 2002, attorney Raymond Prusak appeared on behalfof defendant at a status conference. There is no evidencedefendant was present at this time. Counsel stated, "I'd like toset this down for bench trial date." The case was continued toApril 4. On April 4, a different attorney, John Miraglia, appearedon behalf of defendant. The court inquired whether this was to bea bench or jury trial, but received no response. The case wascontinued to April 8. Again, there is no evidence defendant waspresent at this time. On April 8, Prusak appeared on defendant'sbehalf and the case was continued to April 15. On April 15, Prusakagain appeared on defendant's behalf. When the court inquiredwhether this was to be a bench or jury trial, counsel responded itwould be a bench trial. There is no evidence defendant waspresent. On May 15, Prusak again appeared on behalf of defendant. At this time, defendant was present. Counsel stated, "This isKenneth Elders before the Court. He is set for a bench trialtoday." Counsel then requested a short status date because he wasattempting to locate a witness. Counsel indicated that if he didnot find the witness, defense strategy would change and thereprobably would not be a trial. Counsel then stated, "The Statemade an offer to me earlier today. If they can keep this offeropen until the next court date." The case was then continued toJune 13. On June 13, William Breen appeared on behalf of defendantand indicated that the case was set for status or "possible plea." He asked that the matter be reset for a trial date of August 6.

The case was set for trial on the morning of August 6. Because John Morelli, counsel who was to try the case on behalf ofdefendant, was caught in traffic, it was continued to theafternoon. When the parties returned to the court in theafternoon, the State nolle prossed count I and proceeded on countsII and III. Immediately after doing so, the State began callingits witnesses.

Chicago police officer Louis Carrizal was called as a witnesson behalf of the State. Carrizal testified that on November 24,2001, at approximately 4:30 a.m., he was working near 3430 WestMadison with his partner, Officer Perez. The two set up asurveillance in Garfield Park to observe suspected narcoticstransactions on Madison. Carrizal testified that they parked theircar nearby and walked into the park. Carrizal positioned himselfbehind a tree and conducted surveillance of the 3400 block ofMadison, no more than 50 feet away. According to Carrizal, thearea was well-lit by artificial lighting and he was usingbinoculars.

Carrizal observed defendant walking along Madison on thesidewalk. During his surveillance, defendant was on both the northand south sides of Madison, ranging from 50 to 70 feet away fromCarrizal. On four occasions, Carrizal observed defendant approachthe driver's side of a car, engage in a brief conversation (whichCarrizal could not hear), receive an unknown amount of money, walkto the base of a tree approximately 10 feet away, retrievesomething from a plastic bag lying at the base of the tree, returnto the car, and hand the driver an unknown item. Carrizaltestified that two of the transactions were conducted with the carsfacing eastbound, at which time defendant was facing Carrizal, andtwo of them were conducted with the cars facing westbound, at whichtime defendant's back was to Carrizal.

After observing the four transactions, Carrizal and Perezreturned to their car and drove to the location where defendantwas. Perez detained defendant and Carrizal went to the tree andrecovered a plastic bag that contained seven Ziploc baggies insidewith a white rock substance that Carrizal suspected was crackcocaine. They also recovered $113 from defendant.

On cross-examination, Carrizal stated that he and his partnerobserved defendant for approximately 10 minutes. He further statedthat he believed defendant was receiving money from the individualsin the cars based on the color and shape of the object. Carrizaladmitted that when the cars were facing westbound, defendant's backwas to him and it was more difficult to observe what was occurring. However, it was still his belief that defendant received something,walked to the tree, etc.

The State then offered the stipulated testimony of ElizabethIlowski, a forensic chemist with the Illinois State Police Lab. According to the stipulation, Ilowski, who was qualified as aexpert, received "seven items which she tested using tests commonlyaccepted in the area of forensic chemistry and found the estimatedweight to be 1.4 grams of a chunky substance and found it to becocaine." Defense counsel stipulated to this testimony. The Statethen rested. Defendant moved for a directed finding, which wasdenied. Defendant then rested. After closing arguments, the trialcourt found defendant guilty on count II. At this time thefollowing colloquy occurred:

"THE COURT: Wait a minute. State, wehave a problem. I don't have a jury waiver inthe file.

MS. O'CONNOR [Assistant State'sAttorney]: Did the defendant sign one?

THE COURT: I don't believe so.

MS. O'CONNOR: Was the jury waiver takenon the record?

THE COURT: I don't believe it was.

MS. O'CONNOR: Can you do itretroactively? Was it the defendant's intentto sign a jury waiver?

THE COURT: He was never asked.

MR. MORELLI [Defendant's Attorney]: Thedefendant indicates to me that he wanted abench trial.

THE COURT: Pardon me?

MR. MORELLI: The defendant justindicated to me that he wanted a bench trial. That was his intention.

THE COURT: His intention was what?

MR. MORELLI: It was his intention tohave a bench trial. He did not intend to havea jury trial.

THE COURT: Okay. He needs to sign ajury waiver.

The Court acknowledges the defendantsigned a jury waiver in open court."

Defendant's bail was revoked, a presentence investigation reportordered, and the matter continued.

On September 27, defendant's motion for a new trial was deniedand the court sentenced him to seven years' imprisonment. Prior tosentencing defendant, the court stated:

"THE COURT: Mr. Elders, anything youwish to say before I sentence you?

DEFENDANT ELDERS: That I would like toapologize for the length of time and if theState would have made me that offer for myoffense then I probably would have took it.

THE COURT: What offer did they make?

MR. MIRAGLIA [Defendant's Attorney]: They offered six years.

THE COURT: That was the minimum.

MS. O'CONNOR: Judge, I object to this. I don't see that offer in here on my file so Idon't know where he is getting that.

DEFENDANT ELDERS: I would like toapologize for taking up your Honor's time andI hope your Honor has consideration and wouldgrant me the opportunity to continue my lifeand that would be all.

THE COURT: Counsel, did you ever receivean offer that you are aware of?

MR. MIRAGLIA: I had talked with, therewas an[] offer of six years prior to trial."

Following imposition of sentence, the trial court admonisheddefendant pursuant to Rule 605(a), as set forth in detail below. This appeal followed.

Defendant first contends that he is entitled to a new trialbecause he was not admonished as to his right to have a jury trialand did not sign a jury waiver until after he was found guilty. According to defendant, a jury waiver must come before a trial, notafter. Defendant also argues that his attorney's statement thatdefendant desired a bench trial, made after he was found guilty,and defendant's failure to object are not sufficient factors todemonstrate a valid waiver. Defendant further notes that the trialcourt never personally addressed him with respect to waiver of ajury trial. Defendant asks us to review this claimed error underplain error since he failed to preserve it below.

The State contends that defendant's waiver was understandinglymade and done in open court, the only requirements for a validwaiver, and, therefore, no error occurred. According to the State,the fact that the waiver occurred after defendant's trial isirrelevant. The State further argues that defendant did not objectwhen his counsel indicated his intent to have a bench trial, nordid defendant object at any point during the trial or when thecourt raised the issue of a lack of waiver. The State furthermaintains that because defendant had pled guilty four other timesand was admonished at those times, he knew what he was waivinghere.

A defendant validly waives his right to a jury trial only ifthe waiver is made "(1) understandingly, and (2) in open court." People v. Scott, 186 Ill. 2d 283, 285, 710 N.E.2d 833 (1999). Aknowing and understanding oral waiver can be found if, in thedefendant's presence and without objection from him, "defensecounsel expressly advised the court" that the defendant desires toproceed by way of a bench trial. People v. Eyen, 291 Ill. App. 3d38, 41, 683 N.E.2d 193 (1997). This rule, however, requires "someaffirmative statement by defendant's attorney, in his presence,that the defendant wishes not to exercise his right to a jury trialand, instead, chooses a bench trial." People v. Roberts, 263 Ill.App. 3d 348, 351, 636 N.E.2d 86 (1994). A defendant, however,"will not be deemed to have acquiesced in a jury waiver made by hiscounsel outside the accused's presence." Eyen, 291 Ill. App. 3d at41. Whether a jury wavier is valid does not "rest on any preciseformula but depends on the facts and circumstances of eachparticular case." In re R.A.B., 197 Ill. 2d 358, 364, 757 N.E.2d887 (2001).

We review this claimed error under the plain error doctrinesince it involves "the knowing waiver of the fundamental right toa jury trial." In re R.A.B., 197 Ill. 2d at 363. Since the factsare not disputed, the issue is a question of law, which we reviewde novo. In re R.A.B., 197 Ill. 2d at 363.

Only one case appears to be directly, factually on point,i.e., where waiver came after, or was attempted after, thedefendant was found guilty. In People v. Collins, 9 Ill. App. 3d185, 292 N.E.2d 115 (1972), the court concluded that the defendanthad not waived his right to a jury trial where the record was"devoid of any mention of a jury trial until after the evidence hadbeen heard and a finding of guilty had been entered againstdefendant." Collins, 9 Ill. App. 3d at 185. However, Collins isnot particularly instructive. We note that while Collins does nothave any negative history, it has only been cited once. Moreimportantly, the procedural facts, i.e., what occurred prior totrial and on the day of trial, are not detailed by the court in theopinion. Lastly, there is no evidence a written jury waiver wasexecuted, as in the instant case. Other than Collins, the partieshave not cited, nor has our independent research disclosed, anycase where a jury waiver was executed after the defendant was foundguilty.

The closest case we have discovered is People v. Lombardi, 305Ill. App. 3d 33, 711 N.E.2d 426 (1999). In Lombardi, thedefendant's bench trial began on September 5, 1997. Lombardi, 305Ill. App. 3d at 35. On September 19, the trial court heard closingarguments and continued the matter to September 29 for a ruling. Lombardi, 305 Ill. App. 3d at 37. On September 29, the trial courtnoted that the defendant had not filed a jury waiver and wanted tocorrect this situation before it took the case under advisement. Lombardi, 305 Ill. App. 3d at 37. At this time, the trial courtthoroughly admonished the defendant with respect to her right tohave a jury trial and stated that, although the court had alreadyheard the evidence, it would declare a mistrial if the defendantwanted the case heard by a jury. Lombardi, 305 Ill. App. 3d at 38. The court then continued the case to October 6 so that thedefendant could think about her decision. On October 6, defensecounsel advised the court that he had explained the defendant'srights to her and she wanted the court to render its ruling. Lombardi, 305 Ill. App. 3d at 38. The court again admonished thedefendant, stating that it would declare a mistrial and allow thecase to be heard by a jury should she so desire. Lombardi, 305Ill. App. 3d at 38-39. The defendant signed a jury waiver andthereafter the court allowed the defendant to reopen proofs atwhich time defense counsel presented two additional witnesses. Lombardi, 305 Ill. App. 3d at 39. On October 23, the court foundthe defendant guilty.

On appeal, the defendant argued that she was entitled to a newtrial because she was not admonished with respect to the right tohave a jury trial until 17 days after the bench trial had begun. Lombardi, 305 Ill. App. 3d at 39. The Lombardi court disagreed,noting that a defendant "will not be permitted ' "to gamble on theoutcome before the judge without a jury and then if dissatisfiedmake a belated demand for a jury." ' [Citations.]" Lombardi, 305Ill. App. 3d at 40. The court first found that the defendant hadmade a knowing waiver prior to trial when the trial court had askedboth counsel if they were ready to proceed and defense counselresponded, "[R]eady for the bench trial," and thereafter stated,"We wish to proceed on the bench trial as planned," since thedefendant was present and did not object. Lombardi, 305 Ill. App.3d at 40. The court further noted that, assuming there was nowaiver prior to trial, "defendant knowingly waived her right beforethe bench trial was completed" (Lombardi, 305 Ill. App. 3d at 40)and concluded that "the trial court gave the defendant everyopportunity to demand a jury trial, and, after being completelyadmonished of her rights," the defendant waived them (Lombardi, 305Ill. App. 3d at 41). It was the court's belief that the defendantwanted to have it both ways--"she wanted the trial court to ruleand then she wanted to decide whether she wanted another bite atthe apple by requesting a jury trial." Lombardi, 305 Ill. App. 3dat 41.

Other cases are instructive as well. In Eyen, relied upon bydefendant, on December 13, 1995, at a pretrial conference which thedefendant was not present at, defense counsel asked for a benchtrial, which was set for February 29, 1996. Eyen, 291 Ill. App. 3dat 40. On February 29, before the bench trial began, the trialcourt simply asked both counsel if they were ready, to which theyresponded in the affirmative. Immediately thereafter, the Statepresented its witnesses. Eyen, 291 Ill. App. 3d at 40. Thedefendant was thereafter found guilty and filed a motion for a newtrial on the basis that, inter alia, he had not validly waived ajury trial. Eyen, 291 Ill. App. 3d at 41. On April 10, the trialcourt denied this motion and then sentenced the defendant. Following sentencing, the trial court noted that there was no jurywaiver in the record and asked if the defendant would be willing tosign a jury waiver. Defense counsel indicated that the defendantwould not do so. Eyen, 291 Ill. App. 3d at 41. The recorddisclosed that the trial court never admonished the defendant as tohis right to have a jury trial nor did it confirm in thedefendant's presence that he had waived a jury trial.

The Eyen court concluded that the defendant did not validlywaive a jury trial. According to the court, prior to trial, theissue was discussed only one time when the defendant was notpresent. The next time the issue of a jury waiver was raised, inthe defendant's presence, was six weeks after he was convicted ina bench trial. At this time, defense counsel insisted that thedefendant did not waive a jury trial. Eyen, 291 Ill. App. 3d at41. With respect to the State's argument that the defendant shouldbe deemed to have waived a jury trial because he acquiesced in hiscounsel's conduct by proceeding to a bench trial, the courtdisagreed. Eyen, 291 Ill. App. 3d at 42. The court looked toPeople v. Asselborn, 278 Ill. App. 3d 960, 664 N.E.2d 110 (1996)and People v. Sailor, 43 Ill. 2d 256, 253 N.E.2d 397 (1969), reliedupon by the State here. According to the Eyen court, in both casesthe defendants were present when counsel expressly waived theirright to a jury trial. In Asselborn, in the defendant's presence,counsel specifically asked for a bench trial. In Sailor, again inthe defendant's presence, counsel stated that the defendant hadwaived a jury trial. Neither of the defendants objected to theircounsels' statements and were deemed to have waived their right toa jury trial based on acquiescence. The Eyen court distinguishedthese cases, finding that counsel in Eyen did not expressly waivethe right to a jury trial in the defendant's presence on the day oftrial. Eyen, 291 Ill. App. 3d at 43. Rather, on the day of trial,there was no mention made of whether the case would proceed to ajury or bench trial and the court simply asked counsel if they wereready to proceed. According to the court, "[u]nder thesecircumstances, where nothing is stated in defendant's presence tosuggest that defendant has an option between a bench trial and ajury trial, we cannot deem defendant to have acquiesced knowinglyin his counsel's participation in a bench trial." Eyen, 291 Ill.App. 3d at 43. The court concluded that "the record shows thatdefendant neither executed a written jury waiver nor made a knowingand understanding oral waiver of his right to a jury trial," and,therefore, found that the defendant did not waive his right to ajury trial. Thus, the cause was remanded for a new trial. Eyen,291 Ill. App. 3d at 43.

In People v. Williamson, 311 Ill. App. 3d 54, 724 N.E.2d 167(1999), relied upon by defendant here, the court again concludedthat the defendant had not validly waived his right to a jurytrial. On March 1, 1996, at a status hearing, defense counselstated that the defendant would take a bench trial. Williamson,311 Ill. App. 3d at 56. On March 29, at another hearing, theassistant State's Attorney stated that, by agreement, the case wascontinued to April 26 for motions and a bench trial. On April 26,the assistant State's Attorney again stated the case was continued,to May 10, for motions and a bench trial. The same was true on May10. On June 5, at another hearing, defense counsel made a similarstatement. On June 27, when the matter actually proceeded totrial, no mention of a jury waiver was made. Williamson, 311 Ill.App. 3d at 56. There was also no written jury waiver contained inthe record.

Reviewing the issue under plain error, the Williamson courtnoted that the State maintained that the defendant had waived ajury trial because in his presence, when a bench trial wasdiscussed, the defendant did not object, nor did he object when hisattorney proceeded to a bench trial. Williamson, 311 Ill. App. 3dat 57. The Williamson court first looked to the Illinois SupremeCourt's recent decision in Scott, in which the court held that merereference to a bench trial on the day of trial did not constitutea waiver of a jury trial. Specifically, the Scott court statedthat it had "never found a valid jury waiver where the defendantwas not present in open court when a jury waiver, written orotherwise, was at least discussed." Scott, 186 Ill. 2d at 285. Although the defendant in Scott had executed a jury waiver in hisattorney's office that was later filed outside the defendant'spresence, the defendant was never present in open court when a jurywaiver had been discussed. Scott, 186 Ill. 2d at 285. TheWilliamson court noted that on March 1, March 29, April 26, and May10, although "bench" was referred to, nothing was said that thedefendant had a right to a jury trial or that that right had beenwaived. Williamson, 311 Ill. App. 3d at 59. Additionally, on theday of trial, there was no discussion with respect to thedefendant's right to a jury trial, nor any waiver of same. Specifically, there was no mention whether the case would proceedby jury or bench trial when the court simply proceeded to a benchtrial. The Williamson court concluded that the previous referencesto "bench" were "insufficient to constitute a 'discussion' of jurywaiver in open court." Williamson, 311 Ill. App. 3d at 59. Thecourt also noted that the record did not demonstrate whether thedefendant had been in court except for on May 10 and June 26, andthat on June 26 there was no statement from the defendant or hisattorney with respect to a jury waiver or proceeding by way ofbench trial. Williamson, 311 Ill. App. 3d at 60. The Williamsoncourt therefore reversed the trial court's judgment and remandedthe case for a new trial. Williamson, 311 Ill. App. 3d at 61.

In Roberts, the court concluded that the defendant had notvalidly waived her right to a jury trial where neither "defendantnor her attorney, while [the defendant] was present, made anyaffirmative statement waiving a jury trial or requesting a benchtrial." Roberts, 263 Ill. App. 3d at 351. The court furtherconcluded that "defendant's silence during the trial court's fewreferences to a bench trial and her simple acquiescence to thebench trial at the time it occurred [were] not sufficient to showshe knowingly waived her right to a jury trial, in the absence ofsome affirmative action by her or by her attorney while she waspresent." Roberts, 263 Ill. App. 3d at 351-52. See also In reR.A.B., 197 Ill. 2d at 367 (where "neither the right to a jurytrial not a jury waiver was discussed in [the defendant's] presencein open court," the defendant did not validly waive his right to ajury trial); People v. Taylor, 291 Ill. App. 3d 18, 20-21, 683N.E.2d 977 (1997) (trial court reversed where no written jurywaiver was filed and there was "no express indication that thedefendant was ever given a choice of a bench or a jury trial");People v. Williams, 277 Ill. App. 3d 571, 572-73, 660 N.E.2d 1320(1996) (finding that the defendant validly waived his right to ajury trial even though the jury waiver was not executed until afterthe court had heard arguments on the defendant's posttrial motionsince, before the bench trial, the defendant was admonished by thecourt of his right to have a jury trial); People v. George, 263Ill. App. 3d 968, 972, 636 N.E.2d 682 (1993) (discussions in thepresence of the defendant that would have indicated to him he couldchoose between a bench or jury trial were sufficient to demonstratewaiver).

The State here relies on People v. Frey, 103 Ill. 2d 327, 469N.E.2d 195 (1984), in support of its argument that defendantacquiesced in counsel's conduct and, therefore, validly waived hisright to a jury trial. In Frey, the court reiterated that "theaccused typically speaks and acts through his attorney, [and] wehave given effect to jury waivers made by defense counsel indefendant's presence where defendant gave no indication of anyobjection to the court hearing the case." Frey, 103 Ill. 2d at332. The court in Frey concluded that the defendant had validlywaived his right to a jury trial where the record demonstrated hewas aware of his right to a jury trial and had been present incourt "at some point prior to trial" when the jury waiver had beendiscussed. Frey, 103 Ill. 2d at 333.

Based on the foregoing authority, we find that, at the veryleast, the record must disclose some evidence of some discussion indefendant's presence, prior to being found guilty, with respect toa jury waiver. There is no evidence of same here. Rather, therewas one single reference to proceeding to a bench trial, indefendant's presence, some two and one-half weeks prior to trial. This does not constitute a discussion of a jury waiver ordemonstrate that defendant was aware he could choose between a juryand bench trial. Accordingly, we find the evidence here isinsufficient to establish a valid jury waiver by defendant. Theinstant case is akin to Eyen with the exception that no writtenjury waiver was present in the record there and "bench trial" wasnever mentioned in the defendant's presence prior to trial, whereashere, a "bench trial" was mentioned one time in defendant'spresence prior to trial. However, as in Eyen, defendant here wasnever admonished about his right to a jury trial, nor did the trialcourt, prior to a trial, confirm that defendant had waived a jurytrial. Also, as in Eyen, on the day of trial, no mention was madewhether the case would proceed to a bench or jury trial--the Statesimply proceeded to introduce evidence. Lastly, there was nothingstated in defendant's presence either before trial or on the day oftrial that he had a choice between a jury or bench trial, which wasthe same situation in Eyen. The same is true with respect toWilliamson. In Williamson, although "bench trial" was mentionedone time in the defendant's presence prior to trial, as in theinstant case, nothing was stated that the defendant had a right toa jury trial or had waived same. Again, no mention was made on theday of trial in Williamson whether the case would proceed to abench or jury trial.

The State focuses on the fact that defendant should be deemedto have acquiesced because he did not object to proceeding to abench trial. We do not agree. The only time a bench trial wasreferenced in defendant's presence was on May 15, at which timedefense counsel only mentioned in passing that the case was set fora bench trial. This comment is not even like the one in Asselhornwhere counsel specifically requested a bench trial. Defendant'ssilence when the case proceeded to a bench trial is not sufficientwithout some affirmative act on his or his attorney's part to waivea jury trial. See Roberts, 263 Ill. App. 3d at 351-52. There isno evidence in the instant case that defendant was even given theoption of proceeding with a jury trial or a jury waiver ever beingdiscussed. This is what distinguishes the instant case fromWilliams, George, and Frey. In all of those cases, there was somediscussion prior to a trial of a jury waiver in the defendants'presence or the defendants had been given a choice of whether toproceed to a bench or jury trial. As the court stated in Scott, avalid waiver has never been found where there was not at least adiscussion of a jury waiver in the defendant's presence.

Moreover, even when the trial court here finally addressed theissue, after defendant had been found guilty, defendant was notadmonished, even cursorily, that he had a right to be tried by ajury, like the defendant in Lombardi was, or given an opportunityto think about his choice. In fact, the court here did not evenaddress defendant personally. Defendant was given absolutely noopportunity to demand a jury trial, or to waive same.

Although our case is different from most of those discussedabove because a written jury waiver is present in the record, we donot find this fact dispositive. In this regard, we note that inScott a jury waiver was filed and, apparently, found to be of noimport given the other factors in the case, particularly the lackof any discussion with respect to a jury waiver in the defendant'spresence.

Although ordering a new trial in the instant case may not bea matter of judicial economy, the trial court's error in failing tofulfil its duty to obtain a valid jury waiver in open court priorto trying defendant or, at the least, prior to rendering a findingagainst him, cannot be excused. Accordingly, we reverse and remandthis cause for a new trial.

In light of our decision to reverse and remand, we addressonly those remaining issues likely to recur upon retrial or to havean impact on a new trial.

[THE FOLLOWING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURTRULE 23]

[THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURTRULE 23]

For double jeopardy purposes, we find that there wassufficient evidence for the trial court or a jury to find defendantguilty of possession of a controlled substance with intent todeliver beyond a reasonable doubt.

Lastly, defendant contends that the Rule 605(a) admonishmentsgiven to him were insufficient because they omitted admonishmentswith respect to (a)(1), (a)(3)(B), (a)(3)(C), and (a)(3)(D), andtherefore we must remand this matter for readmonishment. Specifically, defendant argues that he was not informed that: (1)before filing an appeal, he could file a motion to reconsidersentence; (2) he could request the clerk of the court to prepareand file a notice of appeal; (3) the filing of a motion toreconsider sentence tolled the 30-day period for filing a notice ofappeal, rather, "the court seemed to tell" defendant that both amotion to reconsider sentence and the notice of appeal were to befiled within the 30-day period; (4) any issues omitted from hismotion to reconsider would be deemed waived; (5) an attorney couldbe appointed for him for appeal; and (6) a free transcript would beavailable also if he filed a notice of appeal. The State contendsthat defendant was properly admonished since he was informed of thenecessary procedures to follow to perfect his appeal rights, i.e.,to file a motion to reconsider sentence and that issues not raisedwould be waived.

We address this issue so that it does not reoccur on remandand so the trial courts understand they need to properly admonishdefendants and, if they fail to do so, the case will be remanded.

Rule 605(a) provides:

"(1) In all cases in which the defendantis found guilty and sentenced to imprisonment,*** the trial court shall, at the time ofimposing sentence or modifying the conditionsof the sentence, advise the defendant of theright to appeal, of the right to request theclerk to prepare and file a notice of appeal,and of the right, if indigent, to befurnished, without cost to the defendant, witha transcript of the proceedings at the trialor hearing.

(2) In addition to the foregoing rights,in cases in which the defendant has beenconvicted of a felony or a Class A misdemeanoror convicted of a lesser offense and sentencedto imprisonment, *** the trial court shalladvise the defendant of the right to havecounsel appointed on appeal.

(3) At the time of imposing sentence ormodifying the conditions of the sentence, thetrial court shall also advise the defendant asfollows:

A. that the right to appeal thejudgment of conviction, excludingthe sentence imposed or modified,will be preserved only if a noticeof appeal is filed in the trialcourt within thirty (30) days fromthe date on which sentence isimposed;

B. that prior to taking anappeal, if the defendant seeks tochallenge the correctness of thesentence, or any aspect of thesentencing hearing, the defendantmust file in the trial court within30 days of the date on whichsentence is imposed a written motionasking to have the trial courtreconsider the sentence imposed, orconsider any challenges to thesentencing hearing, setting forth inthe motion all issues or claims oferror regarding the sentence imposedor the sentencing hearing;

C. that any issue or claim oferror regarding the sentence imposedor any aspect of the sentencinghearing not raised in the writtenmotion shall be deemed waived; and

D. that in order to preservethe right to appeal following thedisposition of the motion toreconsider sentence, or anychallenges regarding the sentencinghearing, the defendant must file anotice of appeal in the trial courtwithin 30 days from the entry of theorder disposing of the defendant'smotion to reconsider sentence ororder disposing of any challenges tothe sentencing hearing." (OfficialReports Advance Sheet No. 21(October 17, 2001) R. 605, eff.October 1, 2001).

This issue concerns compliance with a supreme court rule and,therefore, our standard of review is de novo. People v. Lloyd, 338Ill. App. 3d 379, 384, 788 N.E.2d 1169 (2003). The courts disagreewhether strict compliance with Rule 605(a) is required or whethersubstantial compliance is sufficient. Compare People v. Glenn, 345Ill. App. 3d 974, 984, 804 N.E.2d 661 (2004) and People v. Taylor,345 Ill. App. 3d 1064, 1082-83, 804 N.E.2d 116 (2004) (strictcompliance required in the cases before the courts) with People v.Garner, ___ Ill. App. 3d ___, ___, 808 N.E.2d 10, 16 (2004) andPeople v. Williams, 344 Ill. App. 3d 334, 339, 800 N.E.2d 168(2003) (strict compliance was not required in the cases before thecourts). We need not decide which standard applies since the trialcourt's admonishments in the instant case did not evensubstantially comply with the requirements of Rule 605(a). Thetrial court admonished defendant as follows:

"You have a right to appeal the decisionof this Court. If you wish to do so you mustfile a notice of appeal within thirty days. If you don't do it within thirty days you willlose your right to do so.

You may, if you wish, file a motion tohave your sentence reduced. You must do thatwithin thirty days. If you don't have alawyer for that purpose or cannot afford oneone will be appointed for you. You will alsobe entitled to a free transcript of the trialand this proceeding."

It is clear that the trial court did not admonish defendant that:(1) he had a right to request the clerk to prepare and file anotice of appeal; (2) that, prior to taking an appeal, he couldfile a motion to reconsider sentence; (3) that in the motion toreconsider sentence, he must set forth all issues or claims oferror regarding his sentence and any challenges regarding thesentencing hearing; (4) that any issue not set forth in the motionto reconsider sentence shall be deemed waived; and (5) that afterdisposition on a motion to reconsider sentence, he could file anotice of appeal.

The trial court is instructed that it must comply with thedictates of Rule 605(a) and properly admonish defendants. Thesimplest way to do so would be to read the contents of Rule 605(a)to a defendant.

For the reasons stated, we reverse and remand this cause tothe circuit court of Cook County for a new trial.

Reversed and remanded.

CAHILL and GARCIA, JJ., concur.