specially concurring:
I concur in Justice Stouder’s opinion reversing and remanding the captioned case as it appears from the certified bystander’s reports that there was no admonition given to the defendant of his right to a jury trial and waiver thereof other than the inadequate written waiver of a jury trial contained within the body of a standard “Not Guilty” plea form. Had we been able to accept the uncertified supplemental bystander’s reports we would not be faced with deciding the issue of whether a proper admonition of the right to a jury trial had been given and whether a valid waiver of that right occurred. Absent a complete report of the proceedings below, that task becomes extremely difficult.
Everyone (our entire panel), agrees that the certified bystander’s report is silent with respect to any admonitions of defendant’s right to a jury trial preceding the defendant’s three guilty pleas to driving without a valid driver’s license. The dissent suggests that the written waiver form stands as uncontroverted evidence that the defendant waived his right to a jury trial in the one case in which he pleaded not guilty. Following the thinking of the majority concerning the issue of whether the proper warnings of the defendant’s right to be represented by counsel were given, we could also conclude that such a sophisticated defendant familiar with the judicial system knew of his right to a jury trial. He could and probably did waive that right similarly as he did his right to be represented by counsel. But for us to take such a posture would infringe upon the right to trial in the case of the ordinary defendant. When faced with the lack of transcript of the entire proceedings, it, I believe, would be wrong to assume that the proper warning regarding the right to a jury trial had been given.
The “Not Guilty” plea form is not sufficient by itself to constitute a waiver of the right to a jury trial. With the legal importance of the right to a jury trial, I feel we cannot assume a waiver of that right from a silent record and a waiver embodied within such a “Not Guilty” plea form. The lack of a third choice on this form, i.e., allowing the defendant the choice of pleading not guilty and demanding a jury trial demonstrates that the usual form gives an inadequate choice to the average defendant.
Although I feel this defendant was sophisticated enough to know and was therefore actually aware of his right to a jury trial, I believe the adverse effect which might result from agreeing with the dissent by adopting the standard written waiver in the “Not Guilty” plea form should be avoided.