Summary
In State v. Sonnier, 461 So.2d 567 (La.App. 3rd Cir. 1984), there was no indication in the record that the defendant was advised of and waived his right to a jury trial.
Summary of this case from State v. SmithOpinion
No. CR84-196.
December 12, 1984.
APPEAL FROM 28TH JUDICIAL DISTRICT COURT, PARISH OF LaSALLE, STATE OF LOUISIANA, HONORABLE EDWIN R. HUGHES, J.
Patrick L. Durusau, Jena, for defendant-appellant.
Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
The defendant, Betty Sonnier aka Betty Girard, appeals her conviction for driving while intoxicated (third offense), a violation of LSA-R.S. 14:98(D). Defendant was tried by judge alone, and was found guilty as charged. The trial court sentenced defendant to serve four and one-half years at hard labor.
Defendant perfected two assignments of error urging insufficiency of the evidence to support her conviction. However, we find an error patent on the face of the record and pretermit discussion of defendant's assignments of error. LSA-C.Cr.P. Art. 920(2).
In criminal cases, the defendant is given a constitutional right to have trial by jury if the punishment may be confinement at hard labor or confinement without hard labor for more than six months. LSA-Const. Art. 1, § 17. The penalty for a third conviction of operating a vehicle while intoxicated is imprisonment with or without hard labor for not less than one year nor more than five years, and a possible fine of not more than one thousand dollars. R.S. 14:98(D). Consequently, the defendant in the instant case had a constitutional right to a jury trial.
The constitutional right to a jury trial may be knowingly and intelligently waived in a noncapital case. LSA-Const. Art. 1, § 17; LSA-C.Cr.P. Art. 782. Every reasonable presumption must be indulged against waiver of this fundamental right. State v. Gardner, 458 So.2d 1016 (La.App. 3rd Cir. 1984); State v. Laurendine, 439 So.2d 398 (La. 1983); State v. Williams, 404 So.2d 954 (La. 1981); State v. McCarroll, 337 So.2d 475 (La. 1976).
The record is void of any showing that defendant waived her right to a jury trial. The failure of the record to establish that defendant knowingly and intelligently waived her constitutional right to a jury trial constitutes an error patent on its face.
DECREE
For the foregoing reasons, defendant's conviction is reversed and the sentence is vacated. This case is remanded for a new trial in accordance with law and consistent with the views expressed in this opinion.
REVERSED AND REMANDED.