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State v. Lokey11/30/2004
her personally or through his attorney. Defense counsel did not, at the DWI trial, refer to any conversation or agreement with Lokey on the issue, although he did testify at the hearing on remand that he had discussed the issue with his client. We find that testimony inadequate to show that counsel sufficiently explained Lokey's rights regarding a jury trial (as opposed to the possible benefits of a judge trial) thus insuring a knowing and intelligent waiver. Further, we cannot consider the comments of the trial judge as evidence. Because of lapses such as these that occur, this court urges, in the strongest possible terms, that to accomplish a clear and certain record, the trial judge conduct an in-court dialogue with the defendant regarding waiver of a jury trial.
This court has previously found that a letter notifying the trial court that the defendant has chosen to waive the jury was not sufficient to evidence a knowing and intelligent waiver. [FN8] Similarly, under the circumstances in this case, we find that the State failed to show that there was a valid jury trial waiver. Therefore, we vacate his conviction, set aside his sentence, and remand the matter for a new trial.
CONVICTION VACATED; SENTENCE SET ASIDE; REMANDED FOR NEW TRIAL.
FN1. State v. Lokey, 02-1087 (La.App. 5 Cir. 2/25/03), 840 So.2d 653, writ denied 03-1212 (La.11/7/03), 857 So.2d 518).
FN2. State v. Quest 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, writ denied 2000-3137(La.11/02/01) 800 So.2d 866, citing State v. Kahey, 436 So.2d 475, 486 (La.1983).
FN3. Id.
FN4. Id; State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604.
FN5. State v. Pierre, 2002-2665 (La.3/28/03), 842 So.2d 321.
FN6. State v. Pierre 2002-2665 (La.3/28/03), 842 So.2d 321; State v. Wolfe, 98-0345, (La.App. 4th Cir.4/21/99), 738 So.2d 1093, 1097.
FN7. Id.
FN8. See State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, writ denied 03-3523 (La.4/23/04), 870 So.2d 298. See also State v. Onstead 03-1314 (La.App. 5 Cir. 5/26/04) 875 So.2d 908.
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