This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In the Matter of
the Welfare of: S.A.S.


Filed October 3, 2000


Stoneburner, Judge


St. Louis County District Court

File No. J999651956



John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, Suite 501, 100 North Fifth Avenue West, Duluth, MN 55802-1298; and


Leslie E. Beiers, Assistant St. Louis County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802; and


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)



            Considered and decided by Toussaint, Presiding Chief Judge, Amundson, Judge, and Stoneburner, Judge.


 U N P U B L I S H E D  O P I N I O N




Appellant S.A.S. was adjudicated delinquent without trial based on facts stipulated to by his counsel and the prosecutor.  Because there is no record that S.A.S. knowingly, intelligently and voluntarily waived his right to trial, we reverse.



S.A.S. was charged by petition with aiding and abetting theft of a motor vehicle and tampering, for incidents involving two separate motor vehicles.  He moved to suppress two statements taken by a police officer.  At the initial omnibus hearing, the district court issued an order suppressing the first statement but admitting the second.

The omnibus hearing was continued to allow counsel for S.A.S. to reopen the issue of the admissibility of the second statement.  At the continued omnibus hearing, counsel for S.A.S. and the prosecutor agreed that if the second statement was ultimately admitted, the case could be submitted to the court on the police report and attachments. Counsel for S.A.S. asked the district court to adjudicate the matter pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Counsel for S.A.S stated: “And we expect the Court, obviously, if it takes it pursuant to Lothenbach, to return a legal finding of guilt.”  The district court found the second statement admissible and adjudicated S.A.S. delinquent based on the stipulated facts. 

The Lothenbach court set forth “a procedure that preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.”  State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).  S.A.S. does not appeal the issue of the admissibility of his statements.  He appeals on the ground that he did not knowingly, intelligently and voluntarily waive his constitutional right to trial because the district court did not make any inquiry of S.A.S. before accepting the case on stipulated facts.  We agree.

 Minn. R. Crim. P. 26.01, subd. 3, which adopts Lothenbach into the Minnesota Rules of Criminal Procedure, mandates that before proceeding on the stipulated facts, the defendant must:

acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.  The agreement and the waiver shall be in writing or orally on the record. 


Minn. R. Crim. P. 26.01, subd. 3.  Here, the record contains no evidence of S.A.S.’s personal written or oral waiver of his trial rights.  “The waiver requirement of Rule 26.01 mandates only a relatively painless and simple procedure to protect a basic right.”  State v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986) (encouraging strict construction of the rule).  When the district court violates this rule, reversal is required.  Id.

            The Minnesota Rules of Juvenile Procedure do not specifically provide for trial on stipulated facts.  Nevertheless, the juvenile rules require that for a valid waiver of the right to trial, pursuant to a plea of guilty, the district court must determine, based on the child’s statements on the record or in a written document, that the child understands all of the rights associated with trial and voluntarily waives those rights.  Minn. R. Juv. P. 8.04, subd. 1.  Counsel for S.A.S. stated on the record that a finding of guilt was the expected consequence of trial on stipulated facts in this case.  The district court erred by failing to make a record that S.A.S. understood all of the rights associated with trial and that he voluntarily waived those rights.