stating that “in order for a criminal defendant to effectively waive his right to a jury trial, he must first be advised by the court of his right to a jury trial, and then, must personally waive the right in open court for the record”
How later courts described this case
- stating that “in order for a criminal defendant to effectively waive his right to a jury trial, he must first be advised by the court of his right to a jury trial, and then, must personally waive the right in open court for the record”
- enunciating colloquy that would sufficiently inform defendant, including unanimity, but noting that procedural rale does not mandate it
- discussing written waiver requirement
Written by the judges who cited it.
The opinion
WOODALL, Judge,
dissenting.
I must respectfully dissent from the majority’s opinion in this case. While I wholeheartedly agree with Judge Hayes that the right to trial by jury is “fundamental to the American scheme of justice,” I believe the record reflects, at the very least, that the Defendant waived his right to object to being tried without a jury. It is clear to me from this record that everyone involved in this case appeared on the day of trial with the understanding the case would proceed as a bench trial. The trial court addressed Defendant’s counsel and told him a written waiver of jury trial needed to be signed by the Defendant. The Defendant’s counsel immediately responded “well, we don’t have that form here.”
Instead of insisting that the trial be continued or otherwise delayed until a written waiver could be obtained, Defendant’s counsel acknowledged that the trial could proceed as a bench trial. Neither the Defendant nor his counsel demanded or requested a jury trial.
The trial was held in November 1994. At the conclusion of all of the proof, the trial judge announced a recess and informed the attorneys that he wanted to speak with the attorneys in chambers. The discussion in chambers is not a part of the record. When court resumed, the trial judge announced that he was delaying entry of judgment against the Defendant, upon the condition that if restitution was paid in full to the victims, there would not be a judgment of guilty entered against the Defendant. The Defendant did not pay any restitution, and the sentencing hearing was held in October 1995. The record indicates that the case had been set for hearing and continued at least twice, with the trial court granting extensions of the deadline for the Defendant to pay restitution. The case was also apparently continued for a pre-sentencing report to be completed. The Defendant did not raise the issue regarding a lack of proper waiver of a jury trial during the time periods given by the trial court for the Defendant to pay restitution in order to avoid entry of a judgment against him. The Defendant did not raise the issue regarding waiver of the jury *223 trial at the time of the sentencing hearing in October 1995.
There is a fundamental difference between a defendant being denied his or her right to a trial by jury and a situation, as in this ease, where the Defendant participates in proceedings that may cause error by the trial court, and he or she fails to take whatever action may be necessary to “prevent or nullify the harmful effect of an error.” T.R.A.P. 36(a).
Therefore, in this particular case, I would hold that Defendant has waived his right to raise this issue on direct appeal of his conviction. T.R.A.P. 36(a).