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Another bad jury trial waiver [NOT FINAL]

Rick Kittel won in State v. Dionicio, No. 101,780 (Kan. App. June 18, 2010)(unpublished), obtaining a new trial in a Montgomery County identity fraud proseuction. The COA held that sufficient evidence supported the district court's bench trial conviction, but further held that the record did not support waiver of the right to a jury trial. The COA noted that the only evidence regarding the waiver in the record on appeal was a vague discussion between the judge and defense counsel. The COA also rejected the state's argument that this was invited error:

Even though Dionicio was in the courtroom when defense counsel asserted that Dionicio had waived his right to a jury trial, the invited error doctrine does not prevent Dionicio from raising this issue on appeal. Dionicio must therefore prevail on this issue. Given the fundamental nature of the right to a jury trial, we must strictly analyze whether Dionicio provided a valid waiver, and mus afford Dionicio every possible opportunity to obtain a jury trial. To validly waive his right to a jury trial, Dionicio must have first been advised of his right to a jury trial by the trial court, then Dionicio must have waived the right personally, either in writing or in open court on the record. These requirements were not met.

Another new trial.

Full post as published by Kansas Defenders on June 18, 2010 (boomark / email).