State v. TateState v. Tate
Lead Opinion
Thе issue presented by this appeal is whether appellant knoAvingly, intelligently and voluntarily waived his right to trial by jury.
The accused’s right to be tried by a jury is secured in this state by Section 10, Article I of the Ohio Constitution
Crim R. 23 (A) is such a rule. It provides, in pertinent part:
“In serious offense cases the defendant * * * may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. * * * In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demand's a jury trial. Suсh demand must be in writing * * *. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.”
Since the crime charged Avas a petty offense (see
In affirming appellant’s conviction, the Court of Appeals accepted appellee’s сontention that there was an implicit AvaiA7er. They stressed appellant’s intelligence, the awareness of both trial counsel and the obsеrving attor
"While the circumstances of this cause could lead one to surmise that appellant was aware of the situation and рossibly took advantage of it, we cannot accept the proposition that there was a waiver of, this right by silence.- To do so would not only conflict with years of constitutional precedent, it could well require this court to review the circumstances of all such similar casеs t-o determine whether the conduct and! education of the accused and tire adequacy of his counsel would support such an implicit waiver in each instance. As was stated in Simmons v. State (1906),
The problem of what constitutes an effective waiver of the right to a jury trial arises because, while Crim. E. 23(A) requires, in serious offеnse cases, that the waiver be in writing, it does not prescribe how the right is to be waived in petty offense cases, once it has been demanded. Fortunately, we can look to R. C. 2945.05 for assistance in remedying this -omission in-the rule. That statute provides, in part:
liIn all criminal cases pending in courts of record in this state, thе defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof.” (Emphasis added.)
Under the authority of Section 5(B), Article IV of the
Since R. C. 2945.05 was not cоmplied with in this instance, appellant was denied his constitutional right to trial by jury.6 This is prejudicial error which requires us to reverse the conviction of thе trial court and the judgment of the Court of Appeals affirming that conviction, and remand the cause to the Hamilton County Municipal Court for a new trial.
Judgment reversed and cause remanded.
Notes
This constitutional provision states, in relevant part:
“Except in * * * cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary * * *. In
“This statute provides:
“At any trial, in any сourt, for the violation of any statute of this state, or of any ordinance of any municipal corporation, except in cases in whiсh the penalty involved does not exceed a fine of one hundred dollars, the accused has the right to be tried by a jury.”
This holding is not inconsistent with pаragraph two of the syllabus in State v. Harris (1976),
This section provides, in pertinent part, that “* * * [a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
Concurrence Opinion
concurring.
1 concur in the decision in this case, but feel compelled to make a few observations concerning the law that this court was compelled to apply even in light of the facts presented.
Justice Sweeney is correct in his conclusion that R. C.
However, under the facts as presentеd within thist case, and other similar circumstances where a definite waiver is shown by the knowing acts of the party, the law should reasonably allow a wаiver to be effected in petty criminal cases. Here, the facts glaringly show that there was an obvious courtroom sandbagging perpetrаted upon the trial judge by the defendant and his trial counsel.
Here, the record shows that the defendant is a man of above normal intelligencе. He was represented by employed counsel, and the latter, when asked by the trial judge if the defendant rvas ready to proceed to triаl, stated that he was ready and did not mention to the judge that he desired a jury trial. The trial proceeded and the defendant testified. Upon being fоund guilty of the offense charged, the defendant and his counsel had no comment to make to the court and, again, no mention of, or comрlaint about, proceeding without a jury.
It is my belief that, in order to avoid this type of situation in the future, prosecutors should make a more thorough review of the record lo determine the presence of a request for a jury. An even more appropriate permanent approach would be for the General Assembly to amend R. C. 2945.05 so that a waiver need only he in writing by one charged with a serious offense.