dissenting.
I dissent for the following reasons:
I.The record gives no indication that Greene knowingly, intelligently, and voluntarily waived his right to a jury trial.
II.In order for a defendant’s waiver of rights to stand, the record must show that the defendant was capable of reading and understanding a written advisement of rights.
III.Poore v. State, 666 N.E.2d 415 (Ind. Ct.App.1996) and Hadley v. State, 636 N.E.2d 173, 175 (Ind.Ct.App. 1994), trans. denied, should be overruled by the Indiana Supreme Court as both are founded upon the erroneous conclusion that the defendant must assert or inform the trial court that he cannot read or understand a waiver of rights form.
Both the Sixth Amendment to the United States Constitution and Art. I, § 13 of the Indiana Constitution guarantee an accused the right to a trial by jury. Where an accused is charged with a misdemeanor, Ind. Crim.Rule 22 applies. This rule provides:
A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by
jury-
In determining waiver under this rule, this court has stated:
Our decisions have consistently held that it is fundamental error for a court to deny a defendant a jury trial without eliciting a waiver from him personally. A valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date.
Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993), reh. denied (citing Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)). This court cannot infer a knowing and intelligent waiver from a record that does not demonstrate the defendant’s personal choice. Id.
In order for Greene’s waiver to stand, the record must reflect that he was fully advised of his right. Eldridge v. State, 627 N.E.2d 844, 847 (Ind.Ct.App.1994), trans. denied. The record must show that he was capable of reading a written advisement and understanding the advisement, whether it be oral or written. Id. at 848, n. 3 (emphasis added).
Here, Greene signed a form entitled “Municipal Court of Marion County Initial Hearing Rights” which indicated that he had a right to a trial by jury and that failure to request a jury trial within ten days prior to the trial date constituted a waiver of that right. Greene signed and dated the form following the statement, “I have read these rights and believe that I understand them.” Record at 22. This form is the only evidence of Greene’s waiver. On the same day, an initial hearing was held where the trial court signed a no contact order and instructed *41Greene to sign it. The trial court then stated, “Contact your attorney in the next ten days, otherwise you could give up certain defenses that you have.” Record at 26. Thereafter, Greene appeared for his bench trial and was found guilty.
Prom these facts, the majority erroneously concludes that Greene effectively waived his right to a trial by jury. However, the record reveals only that Greene signed the form without any evidence or inquiry from the Judge that he was capable of reading and understanding its contents. Without this, there can no effective waiver.1
Nevertheless, citing Poore v. State, 666 N.E.2d 415, 418 (Ind.Ct.App.1996) and Hadley v. State, 636 N.E.2d 173, 175 (Ind.Ct.App. 1994), the Majority indicates that because Greene did not assert that he could not read or understand the form, he has not established that he was not fully informed of his rights. See Poore, supra, at 418. By relying upon Poore and Hadley, the Majority now places the onus on the defendant to demonstrate whether or not he can read and understand the waiver form. As a result, the Majority not only relieves the trial court of any duty to inquire as to a defendant’s ability to read and understand a form waiving his fundamental constitutional right to a jury trial, but now affirmatively shifts the burden of establishing a record of a knowing and intelligent waiver to the defendant. This is in error.
The trial court, not the defendant, should establish a record that the defendant was capable of reading a written advisement and of understanding the advisement, whether it be oral or written. Because Poore and Had-ley impermissibly allow this burden to be shifted to the defendant, these cases should be overruled by the Indiana Supreme Court. Hadley, for example, shows on the face of the opinion that Hadley did not have an opportunity to read or understand the waiver he signed. “Hadley signed and dated the bottom of the form immediately beneath the sentence T have read these rights and believe that I understand them’”. Hadley, supra, at 174 (emphasis added). If Hadley signed the form immediately, he could not have read it or understood it. The mere formality of his signature lends nothing to the avoidance of fundamental error. Again, in Poore, there is a signing of the waiver of a jury trial form on September 20, 1994, without any indication of an advisement or inquiry. After the ten days to request a jury trial had expired and his right to a jury forfeited, an attempt to doctor the record was made on October 3, 1994, by having Poore sign a second waiver of jury trial form before his bench trial. Poore, supra, at 417.
Without any evidence that Greene could read and understand the “Initial Rights Hearing” form, I cannot conclude that he knowingly, intelligently, and voluntarily waived his right to a jury trial.
For these reasons, I would reverse Greene’s conviction for battery and remand this case for a new trial.
. This court s determination in Eldridge supports this conclusion as it presents analogous facts. In Eldridge, the defendant signed a form comparable, if not identical, to the one signed by Greene. Thereafter, Eldridge appeared for his initial hearing and the trial court instructed Eldridge of a no contact order requested by the State. Eldridge, supra, at 847. The trial court gave Eldridge time to review the order and then asked him if he read and understood the order, to which he responded affirmatively. Id. Based upon this interaction, this court determined that the trial court could reasonably conclude that Eldridge was capable of reading and understanding the ‘Initial Hearing Rights” form. Id.
Unlike Eldridge where the defendant’s understanding could be found based upon his interaction with the trial court, here the record only shows that Greene signed the “Initial Hearing Rights” form and nothing else. In fact during his initial hearing, the trial court did not even ascertain whether Green read and understood the no contact order but only instructed him to sign it, and told him to obtain counsel or he would "give up certain defenses.” Record at 26.