This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1392

 

State of Minnesota,

Respondent,

 

vs.

 

Dean Cary Meyer,

Appellant.

 

 

Filed June 5, 2001

Reversed and remanded

Shumaker, Judge

 

Kandiyohi County District Court

File No. K4991727

 

 

 

 

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Boyd Beccue, Kandiyohi County Attorney, C. J. Crowell, First Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

GORDON W. SHUMAKER, Judge

After a bench trial, the district court found appellant Dean Cary Meyer guilty of the felony of third-degree criminal sexual conduct.  Meyer argues that the court erred by conducting a bench trial without Meyer’s personal waiver of his right to a jury trial.  We agree and reverse and remand.

FACTS

            In the spring of 1999, 15-year-old J.L.C. telephoned a male she knew as “Cheeto” or “Andre” and asked him to come over to her home to have sex with her.  The male arrived twenty minutes later and had sexual intercourse with J.L.C.  “Andre” or “Cheeto” was actually 21-year-old Dean Cary Meyer. 

The state charged Meyer with third-degree criminal sexual conduct, a felony for which Meyer had a right to be tried by a jury.  At a pretrial conference, the district court judge and Meyer’s attorney discussed the type of trial to be held:

THE COURT:      Are you requesting a court trial or a jury    trial?

 

[DEFENSE COUNSEL]:      Court trial, your Honor.

 

THE COURT:      All right.

 

There was no further discussion about the type of trial to be held.  And, although Meyer himself was present for the pretrial conference, neither his attorney nor the court asked him if he chose to waive his right to a jury trial.

After a bench trial on March 28, 2000, the court found Meyer guilty of third-degree criminal sexual conduct.  Meyer appeals, contending that he should have been allowed to have a jury trial.

D E C I S I O N

Meyer contends on appeal that the district court erred by failing to follow Minn. R. Crim. P. 26.01, subd. 1(2)(a), for waiver of the right to trial by jury.  We review de novo interpretations of rules of criminal procedure.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).

Because Meyer was charged with an offense punishable by incarceration, he had a right to be tried by a jury.  Minn. R. Crim. P. 26.01(1)(a); State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).  Minnesota law permits a criminal defendant to waive the right to a jury trial and to consent to a bench trial.  Id.  But the defendant must personally waive that right:

The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

 

Minn. R. Crim. P. 26.01, subd. 1(2)(a).  We have held that this rule is clear:

The rule has a clear meaning – to guarantee the right of jury trial unless the record shows a clear waiver by the defendant himself either orally or in writing.

 

Sandmoen, 390 N.W.2d at 424.  We have also held that the rule is to be strictly construed.  State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984).

Thus, if there is to be a valid waiver of the right of jury trial on all issues, the defendant must personally waive that right in accordance with rule 26.01, subd. 1(2)(a).  It is not sufficient for defense counsel to waive that right on the client’s behalf, even if counsel does so in the client’s presence.  Sandmoen, 390 N.W.2d at 424-25.  “As we view the rule, strict compliance is required in order to assure that the waiver is voluntarily and intelligently made.”  Id. at 423-24 (citing State v. Pietraszewski, 283 N.W.2d 887, 889-90 (Minn. 1979)).

Here, the record shows no personal waiver by Meyer, either in writing or orally.  The district court erred in permitting a bench trial without the requisite personal waiver.

Reversed and remanded.