dissenting.
The trial court certainly had the duty to give Rogers the opportunity to try the issue of mental retardation before a jury. Fleming v. Zant, 259 Ga. 687, 691 (4) (386 SE2d 339) (1989). And, in fact, the trial court fulfilled that obligation. Having been granted a jury trial, Rogers elected to waive his right in that regard. Thus, the only issue before this Court is whether he was authorized to do so. Without citing supporting authority, the majority holds that, despite the waiver, it was “the duty of the trial court to conduct a jury trial on the issue of mental retardation pursuant to the procedures established in Fleming.” Majority opinion, p. 70.1 disagree and believe that Rogers could and did waive his right to a jury trial, and that the trial court, acting as the trier of fact, properly addressed and resolved the issue of his alleged mental retardation.
Nothing in Fleming holds that the procedure which it established is mandatory and cannot be waived. Even the right to trial by jury guaranteed by the Federal and Georgia Constitutions may be waived. Thus, the majority now elevates the right to a jury trial recognized in Fleming to a higher status than the comparable constitutional right. However, the purpose of the Fleming trial on the issue of retardation is to give defendants “ ‘essentially the same opportunity to litigate the issue of (their) mental retardation as (they) would have had if the case(s) were tried today, with the benefit of the OCGA § 17-7-131 (j) death-penalty exclusion.’ [Cit.]” (Emphasis supplied.) Bur*71gess v. State, 264 Ga. 777, 790 (36) (450 SE2d 680) (1994). Under OCGA § 17-7-131 (j), the accused does not have a non-waivable right to a jury trial. That provision clearly provides that, “should . . . the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed. . . .” (Emphasis supplied.) Thus, the statute itself contemplates that the matter need not be resolved by a jury and, if Rogers were tried today, he could waive his right to a jury trial.
Accordingly, today’s opinion is contrary to the correct construction of Fleming, in that it deprives the defendant of the comparable opportunity afforded by OCGA § 17-7-131 (j) to waive his right to a jury trial and to submit the issue of mental retardation to the trial court. However, the majority contends that such construction “ignores the plain language in Fleming requiring that the determination of whether a defendant is mentally retarded be decided by a jury.” Majority opinion, p. 70, fn. 4.1 submit that, to the contrary, the majority’s analysis ignores the plain language in OCGA § 17-7-131 (j) authorizing an accused to waive his right to a jury determination of mental retardation.
The fact that the 1995 habeas court ruled in favor of Rogers is immaterial. That was an entirely separate proceeding. Zant v. Foster, 261 Ga. 450, 451 (3) (406 SE2d 74) (1991), overruled on other grounds, State v. Patillo, 262 Ga. 259, 261, fn. 1 (417 SE2d 139) (1992). The habeas court concluded only that there was reason to hold a trial as to retardation. It did not hold that Rogers was retarded or that he had an unwaivable right to have a jury make that determination. After the matter was returned to the trial court, Rogers sought to waive the jury trial he previously obtained from the habeas court. The trial court did not summarily accept this waiver. Instead, it conducted an evidentiary hearing and found, as a matter of fact, that Rogers was not mentally retarded. The trial court also found that Rogers was aware of the consequences of relinquishing his right to the scheduled jury trial and that he waived that right knowingly and voluntarily. The majority does not contest the sufficiency of the evidence to authorize those findings. Thus, the effect of today’s holding is that, as a matter of law, one who is competent to waive his rights and who does so freely and intelligently is nevertheless not bound by his waiver. I submit that, by its creation of a non-waivable legal right to a jury trial, the majority misinterprets Fleming so as to deprive a competent accused of the fundamental right to make intelligent and voluntary decisions for himself. The purpose of the judiciary is not to construe the law so as to protect citizens from what the courts perceive to be bad choices, but to ensure that the law as it exists is applied correctly and enforced uniformly. In my opinion, Rogers waived his right to a jury trial under existing law, and that *72waiver is valid and enforceable despite the majority’s holding to the contrary.
Decided January 13, 2003. Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Jr., C. Rebecca Smith, Andrews & Knowles, Craig C. Knowles, for appellant. Bryant G. Speed II, District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.