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Name: People v. Smith
Case #: A106685
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 09/14/2005

Following a mistrial, appellant was convicted in a court retrial of multiple offenses against his former spouse. On appeal, he argued that the trial court violated his right to a jury trial by failing to obtain a second in-court waiver of his jury right before retrying him. The appellate court rejected the argument. There was no dispute that there was a valid waiver of a jury, prior to the first trial. As long as the second trial comes about as the result of a mistrial rather than a reversal on appeal, the defendant’s consent to a court trial continues in effect unless the defendant timely moves to withdraw it. Where a conviction is reversed on appeal, one cannot presume that the defendant consents to submit to a court trial by the same tribunal which originally found him guilty. Here, appellant consented to the court trial, which was interrupted by the mistrial. Therefore, the completion of the trial did not exceed the scope of the original consent.