Rice v. People, No. C-958

Docket NºNo. C-958
Citation565 P.2d 940, 193 Colo. 270
Case DateJune 06, 1977
CourtSupreme Court of Colorado

Page 940

565 P.2d 940
193 Colo. 270
Kenneth RICE and Ronald M. Kelsey, Petitioners,
v.
The PEOPLE of the State of Colorado, Respondent.
No. C-958.
Supreme Court of Colorado, En Banc.
June 6, 1977.

Page 941

Roger Cisneros, Denver, for petitioners.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for respondent.

PRINGLE, Chief Justice.

[193 Colo. 271] The defendants were convicted in a trial to the court of menacing with a deadly weapon in violation of section 18-3-206, C.R.S.1973. The court of appeals affirmed the convictions, Colo.App., 551 P.2d 1081 (1976), holding inter alia that there had been an effective waiver of the right to a jury trial. We granted certiorari and we now reverse the court of appeals.

Crim.P. 23(a)(5) provides:

"Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record, or by his announcement in open court appearing of record if the prosecuting attorney consents. Trial shall then be by the court." (emphasis added) 1

There was no written instrument executed in the instant case. Under Crim.P. 23(a)(5), therefore, to effectively waive their right to a jury trial, the defendants had to have announced that intention in open court. Yet, the record fails to reflect any in court statement made by the defendants themselves requesting or consenting to the waiver. Instead, only the following exchange appears:

"The Court: The Court is informed that at a prior hearing in this matter, there was a stipulation entered into that this cause be tried to the Court without a jury. Am I correct in that information?

District Attorney: Yes, your Honor.

Defendants' Counsel: That is correct.

The Court: Such being the case, we will proceed to the trial of this matter." (f. 119)

Rules prescribing the manner in which the right to trial by jury may be waived are to be strictly interpreted in order to preserve this fundamental right. People v. Brown, 37 App.Div.2d 980, 327 N.Y.S.2d 820 (1971); People v. Holmes, 54 Cal.2d 442, 5 Cal.Rptr. 871, 353 P.2d 583 (1960). We hold, therefore, that the plain meaning of Crim.P. 23(a)(5) requires that a defendant personally waive his right to a jury trial and that a statement by his counsel does not operate as a waiver. There are sound reasons for the requirement that the waiver of jury trial be expressed personally by the...

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33 practice notes
  • Dumas v. State, No. 81-2293
    • United States
    • Florida District Court of Appeals
    • September 13, 1983
    ...have indeed imposed such a colloquy requirement on direct appeal, either in the absence of a controlling rule, e.g., Rice v. People, 193 Colo. 270, 565 P.2d 940, 942 (1977) (en banc) ("That expensive and time consuming process [of proceedings on remand] is rarely necessary where the re......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...63 S.Ct. 236, 87 L.Ed. 268 (1942); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930); Rice v. People, 193 Colo. 270, 565 P.2d 940 (1977). See also Penney v. People, 146 Colo. 95, 360 P.2d 671 (1961) (right to be present at each step of felony proceedings can......
  • State v. Gore, No. 17769.
    • United States
    • Supreme Court of Connecticut
    • September 23, 2008
    ...881 P.2d 298, 34 Cal. Rptr.2d 238 (1994); People v. Holmes, 54 Cal.2d 442, 443-44, 353 P.2d 583, 5 Cal.Rptr. 871 (1960); Rice v. People, 193 Colo. 270, 271-72, 272 n. 2, 565 P.2d 940 (1977); State v. Upton, 658 So.2d 86, 88 (Fla.1995); Balbosa v. State, 275 Ga. 574, 575, 571 S.E.2d 368 (200......
  • State v. Umphenour, No. 43286–2015.
    • United States
    • United States State Supreme Court of Idaho
    • May 4, 2016
    ...an increased danger of misinterpretation with respect to a right considered one of the most important in our democracy.” Rice v. People, 193 Colo. 270, 565 P.2d 940, 941 (1977). Thus, “a requirement that the defendant personally waive the right to a trial by jury alleviates the difficult ta......
  • Request a trial to view additional results
33 cases
  • Dumas v. State, No. 81-2293
    • United States
    • Florida District Court of Appeals
    • September 13, 1983
    ...have indeed imposed such a colloquy requirement on direct appeal, either in the absence of a controlling rule, e.g., Rice v. People, 193 Colo. 270, 565 P.2d 940, 942 (1977) (en banc) ("That expensive and time consuming process [of proceedings on remand] is rarely necessary where the re......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...63 S.Ct. 236, 87 L.Ed. 268 (1942); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930); Rice v. People, 193 Colo. 270, 565 P.2d 940 (1977). See also Penney v. People, 146 Colo. 95, 360 P.2d 671 (1961) (right to be present at each step of felony proceedings can......
  • State v. Gore, No. 17769.
    • United States
    • Supreme Court of Connecticut
    • September 23, 2008
    ...881 P.2d 298, 34 Cal. Rptr.2d 238 (1994); People v. Holmes, 54 Cal.2d 442, 443-44, 353 P.2d 583, 5 Cal.Rptr. 871 (1960); Rice v. People, 193 Colo. 270, 271-72, 272 n. 2, 565 P.2d 940 (1977); State v. Upton, 658 So.2d 86, 88 (Fla.1995); Balbosa v. State, 275 Ga. 574, 575, 571 S.E.2d 368 (200......
  • State v. Umphenour, No. 43286–2015.
    • United States
    • United States State Supreme Court of Idaho
    • May 4, 2016
    ...an increased danger of misinterpretation with respect to a right considered one of the most important in our democracy.” Rice v. People, 193 Colo. 270, 565 P.2d 940, 941 (1977). Thus, “a requirement that the defendant personally waive the right to a trial by jury alleviates the difficult ta......
  • Request a trial to view additional results

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