¶ 1 Eugene Reed Bennett appeals his convictions for sodomy and rape of a child. Bennett argues that being compelled to appear at trial in prison clothes violated his rights to due process and effective assistance of counsel.
¶ 2 On October 16, 1991, Bennett was tried before a jury in Third District Court. Bennett was represented by court-appointed counsel. Just prior to the first day of trial, Bennett received the clothing he had been wearing when he was booked into jail a few months earlier. Because Bennett had gained weight while incarcerated, his pants tore when he put them on. For the first day of trial, Bennett wore the only other clothing available to him, a blue jumpsuit, clearly marked with the label “Tooele County Jail” stenciled in block letters across the back. Bennett wore the jail jumpsuit during jury selection and the first part of his trial. The court did not inquire why Bennett was dressed in this manner, and Bennett’s attorney did not request a postponement or continuance until civilian clothing could be obtained. On the second day of trial, Bennett’s mother brought civilian clothing, which he wore. The jury convicted Bennett of two counts of sodomy on a child and one count of rape of a child.
¶ 3 On appeal,2 Bennett asserts that his appearance in jail clothing violated his right *2to due process. In Chess v. Smith, 617 P.2d 341, 344 (Utah 1980), this court held that a defendant is entitled to appear at trial in civilian clothing unless the defendant affirmatively waives that right. We stated, “The prejudicial effect that flows from a defendant’s appearing before a jury in identifiable prison garb is not measurable, and it is so potentially prejudicial as to create a substantial risk of fundamental unfairness in a criminal trial.” Id. We further held that “a trial judge should on his own initiative inquire of a defendant whether he wishes to waive his right not to appear in prison clothes so that the record affirmatively shows an intelligent and conscious waiver by the defendant if the defendant chooses to stand trial in prison clothes.” Id. at 345.
¶ 4 The State concedes that, unless overruled, Chess mandates reversal of Bennett’s conviction. We decline the State’s invitation to overrule Chess. Accordingly, we reverse Bennett’s conviction.
¶ 5 Chief Justice HOWE concurs in Justice RUSSON’s opinion.. After his conviction, Bennett wrote a letter to Third District Court expressing a desire to appeal his conviction. This letter was misplaced after it was filed with the court clerk. A number of years later, Bennett filed a petition for writ of habeas corpus that was denied by Judge Tyrone Medley. In the course of appealing Judge Medley's order denying habeas corpus relief, Bennett’s counsel discovered the letter. This court vacated Judge Medley’s order and remanded for reconsideration as to whether the letter constituted a notice of appeal. See Bennett v. Holden, 932 P.2d 598, 599-601 (Utah 1997). Judge Medley held that it did and on September 2, 1997, entered an amended order reinstating Bennett's direct appeal, nunc pro tunc.