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Must advise of right to jury trial before effective waiver [NOT FINAL]

Washburn student intern Christopher Mann and I won in State v. Frye, No. 101,292 (Kan. App. Feb. 26, 2010)(unpublished), reversing a Riley County aggravated battery conviction. A district court convicted Mr. Frye of a lesser level of aggravated battery after a bench trial. The bench trial occurred after a document purporting to be a waiver of jury trial was submitted to the district court. But the record failed to include any colloquy between the district court and Mr. Frye regarding the right to a jury trial:

A recent case from this court is similar to the case at hand. In State v. Bowers, 42 Kan. App. 2d 739, 216 P.3d 715 (2009)[blogged about here], the defendant was not advised of his right to a jury trial, nor did he personally waive that right in writing or in open court on the record. We agreed with the defendant he was not adequately advised of his right to a jury trial and reversed the district court and remanded the case for a new trial. In this case, the defendant did personally waive his right to a jury trial in writing. However, there is no indication in the record the district court advised the defendant of his right to a jury trial before he signed the waiver. Because the district court failed to follow [State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975)], the defendant's conviction is reversed and his sentence is vacated.

So, Mr. Frye gets a new trial (either with a jury or after a proper waiver colloquy).

Full post as published by Kansas Defenders on March 01, 2010 (boomark / email).