Wilson v. State
Decision Date | 07 September 1983 |
Docket Number | No. 1-383A89,1-383A89 |
Citation | 453 N.E.2d 340 |
Parties | Anthony H. WILSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Court | Indiana Appellate Court |
Frank G. Kramer, Ewbank, Meyer & Kramer, Lawrenceburg, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen ., Indianapolis, for appellee.
Appellant Anthony H. Williams appeals from his convictions for driving while intoxicated and unsafe lane movement in a trial to the court. We reverse and remand.
Wilson was observed by an Indiana State Police officer entering the left lane of the road several times. The officer stopped Wilson because of these lane changes. Upon approaching the vehicle, the officer detected the odor of alcohol. A subsequent breathalyzer test indicated a blood alcohol level of .133%. Defendant was convicted in a bench trial of driving while intoxicated and unsafe lane movement. It is from
those convictions that defendant now appeals.
Wilson raises four issues on appeal. However, because we reverse, we deal only with appellant's first issue:
Did the trial court err in denying Wilson's request for jury trial?
The trial court erred in denying Wilson's request for jury trial.
We begin our discussion by noting that there was in effect, at the time of the commission of the alleged offense and at the time formal proceedings were commenced against the defendant, a statute which stated that Ind.Code Ann. Sec. 35-1-34-1 (Burns 1979). 1 Our supreme court has expressly indicated that a waiver of jury trial under section 35-1-34-1, by submitting the trial to the court, must be made "by [the] defendant personally" and must be "reflected in the record before the trial begins either in writing or in open court." Good v. State, (1977) 267 Ind. 29, 32, 366 N.E.2d 1169, 1171. See also Smith v. State, (1983) Ind.App., 451 N.E.2d 57, 60. Our supreme court has also noted that there is no statutory or constitutional requirement that the court explain to the defendant the difference between a jury trial and a trial to the court or that the record demonstrate defendant's understanding of such a difference. Kennedy v. State, (1979) 271 Ind. 382, 387, 393 N.E.2d 139, 142, cert. denied 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 734 (1980). See also Earl v. State, (1983) Ind., 450 N.E.2d 49, 50.
Also in effect at the same time was our supreme court's promulgation of Ind. Rules of Procedure, Criminal Rule 22. That rule states, in its entirety:
The rule was adopted January 1, 1981. Because C.R. 22 was promulgated by the supreme court after its decisions in Good and Kennedy, we must presume that it was written with those decisions in mind. This presumption gives rise to the inference that the supreme court intended to limit the application of Good and Kennedy, as well as the provisions of Indiana Code section 35-1-34-1, to cases involving felony charges. 2 Criminal Rule 22 thereby carves out an apparent exception to the requirement of Good and the holding in Kennedy in cases involving the trial of misdemeanor charges. Because C.R. 22 deals specifically with the trial of misdemeanor charges, we deem it to be controlling in this case.
In the instant case, Wilson contends that the trial court made no explanation of the consequences of a failure to demand trial by jury . Nowhere does the record affirmatively indicate that the court made such an explanation. In fact, the converse is true. In his order of November 9, 1982, the trial judge noted that C.R. 22 requires "that a defendant be advised he may demand a jury trial in writing and of the [sic] consequences to do so." Record at 26-27. The judge then noted that since Wilson, by counsel, waived arraignment, he could not later claim error in the court's failure to so apprise him. The trial judge was mistaken in that regard. By the court's own admission, it did not apprise him of the consequences of his failure to request a jury trial. The record is silent as to any subsequent advisement by the court. Pursuant to the provisions of C.R. 22, we cannot say that the defendant effectively waived his right to a jury trial in this case. 3 We, therefore, reverse and remand for retrial.
Reversed and Remanded.
1 Section 35-1-34-1 was subsequently repealed by 1981 Ind.Acts, Pub.L. 298...
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