author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert S. Robinson, Defendant-Appellant.
    Supreme Court

      No. 00-2435-CR.

      Oral argument December 3, 2001.

    Decided January 29, 2002.

    2002 WI 9
    (Also reported in 638 N.W.2d 564.)

      For the defendant-appellant there were briefs by Leonard D. Kachinsky and Kachinsky & Petit Law Offices, Neenah, and oral argument by Leonard D. Kachinsky.

    For the plaintiff-respondent the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This appeal from a judgment of conviction and an order of the circuit court comes to this court upon certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000). The Circuit Court for Winnebago County, Bruce K. Schmidt, Judge, entered a judgment of conviction on two counts of recklessly endangering safety and an order denying a post-conviction motion by the defendant Robert S. Robinson. The defendant had sought to set aside one of the two counts to which he had pled no contest pursuant to a negotiated plea agreement. The defendant's post-conviction motion claimed that the two counts were multiplicitous, violating his state and federal constitutional guarantees against double jeopardy. The defendant appealed the judgment of conviction and the order denying his post-conviction motion.

¶ 2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy? This court determines this question of law independently of the circuit court but benefiting from its analysis.

¶ 3. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We further conclude, however, that under some circumstances this remedy might not be appropriate. A court should, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the State's interests. Under the circumstances of the present case, we reverse the judgment of conviction and the order of the circuit court and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct further proceedings not inconsistent with this decision.

H-t

¶ 4. The facts of this case are undisputed for purposes of this appeal. On May 19,1999, the defendant struck Norman Elsinger, who was attempting to break up a barroom fight. The victim suffered a severe brain injury and required hospitalization.

¶ 5. A complaint was filed on June 25, 1999, charging the defendant with one count of aggravated battery as a party to the crime in violation of Wis. Stat. § 940.19(5) (a class C felony) and one count of recklessly endangering safety as a party to the crime in violation of § 941.30(1) (a class D felony). The complaint alleged that the defendant was a repeat offender under § 939.62(l)(b). The State subsequently filed an information containing the same charges as those in the complaint.

¶ 6. The State and the defendant entered into a negotiated plea agreement. Under the agreement, the State amended the information to reduce the original count of aggravated battery to one count of recklessly endangering safety, to retain the original count of recklessly endangering safety, and to eliminate the repeat offender allegations. The amended information reduced the defendant's exposure from 27 years in state prison to ten years. In addition, the State agreed to recommend an imposed and stayed two-year prison sentence, probation, eight months in jail as a condition of probation, and restitution.

¶ 7. In exchange for the State's concessions, the defendant agreed to enter pleas of no contest to the two counts of recklessly endangering safety as a party to the crime.

¶ 8. The defendant filed a signed Plea Questionnaire/Waiver of Rights form with the circuit court. The circuit court engaged the defendant in a colloquy regarding the plea agreement, accepted the defendant's pleas, and ordered a presentence investigation. On March 16, 2000, the circuit court sentenced the defendant to five years in prison on each count of recklessly endangering safety, the sentences to be served consecutively.

¶ 9. On July 19, 2000, the defendant filed a post-conviction motion for relief, alleging that the two counts of recklessly endangering safety were identical in both fact and law and that the defendant's convictions on the two counts violated the double jeopardy clauses of the state and federal constitutions. The defendant requested that the circuit court vacate his conviction and sentence on one of the two counts of recklessly endangering safety and leave standing the conviction and sentence on the other count. The effect of granting the defendant's motion would be to subject the defendant to a single five-year sentence in prison for one count of recklessly endangering safety.

¶ 10. The circuit court denied the defendant's motion, ruling that the defendant had waived his right to challenge his convictions and the plea agreement, even on constitutional grounds, because he entered a knowing and voluntary plea to both counts of recklessly endangering safety, had been represented by counsel throughout the proceedings, had engaged in a colloquy with the circuit court, and had signed the Plea Questionnaire/Waiver of Rights form. The defendant appealed the judgment of conviction and the order denying the post-conviction motion, and this court accepted certification of the appeal.

II

¶ 11. The parties agree on two propositions of law that are not briefed or argued before this court on this appeal. Therefore, we do not address these issues, but set them forth to put this appeal in context.

¶ 12. First, the parties agree that on the facts of the present case the amended information to which the defendant pled no contest pursuant to the negotiated plea agreement was multiplicitous and violated the double jeopardy provisions of both the state and federal constitutions. The double jeopardy violation did not arise from the original complaint or information, but rather from the negotiated plea agreement that contained two identical counts of recklessly endangering safety for the same criminal conduct.

¶ 13. Second, the parties agree that the defendant's plea of no contest did not waive the defendant's right to bring a post-conviction motion to challenge his conviction on double jeopardy grounds. The parties agree that a simple entry of a guilty plea does not waive the constitutional defect of double jeopardy. An express waiver of a double jeopardy claim in a plea agreement is needed for a waiver of a double jeopardy claim.

¶ 14. The parties agree that the defendant did not expressly waive his double jeopardy claim and, therefore, his no-contest plea and conviction on the two counts of recklessly endangering safety did not waive his double jeopardy claim in the present case.

III

¶ 15. The parties disagree about one issue of law — the remedy in the present case. They correctly point out that there is no direct precedent in Wisconsin regarding the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts in the agreement and conviction are later determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy.

¶ 16. The parties' disagreement about the appropriate remedy in the present case stems from their disagreement about the proper characterization of the present case.

¶ 17. The defendant focuses on the constitutional infirmity of the judgment of conviction. He characterizes the present case as one in which the amended information and resulting judgment of conviction in-elude a constitutionally invalid count, rendering void the conviction and sentence on that count. According to the defendant, the other count is valid, and the conviction on that count should stand, leaving intact a five-year sentence.

¶ 18. In contrast, the State focuses on the defendant's repudiation of the negotiated plea agreement. The State compares the present case to those in which a plea agreement has been breached.

¶ 19. Numerous cases have stated that when the breach of a plea agreement is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing. These cases demonstrate that the remedy for a breach of a plea agreement depends on the nature of the breach and the totality of the circumstances.

¶ 20. The defendant's repudiation of the plea agreement is a substantial and material breach of the plea agreement because it deprives the State of the benefit for which it bargained, namely, the defendant's conviction on two counts of recklessly endangering safety that exposes the defendant to a maximum sentence of ten years in prison. The State argues that because the defendant is reneging on the plea agreement, the plea agreement should be vacated. The State urges that the remedy in the present case is to reverse the conviction, vacate the plea agreement, reinstate the original information, and restore the parties to their positions before the execution of the invalid plea agreement. According to the State, resentencing would not be a meaningful remedy in the present case because the circuit court has already imposed the maximum five-year penalty on the remaining "valid" felony count of recklessly endangering safety. The State contends that allowing one of the five-year sentences to stand negates the essence of the State's and defendant's negotiated plea agreement that the defendant would be exposed to a maximum sentence under the plea agreement of ten years.

¶ 21. The defendant and the State rely on different cases to support their respective positions about the appropriate remedy in the present case.

¶ 22. The defendant relies on State v. Benzel, 220 Wis. 2d 588, 583 N.W.2d 434 (Ct. App. 1998), in which the accused pled no contest to one count of possession of marijuana with intent to deliver and one count of possession of drugs without a tax stamp. No plea agreement was involved in Benzel.

¶ 23. After Benzel's conviction, the supreme court declared the tax stamp statute unconstitutional, and Benzel challenged his conviction on the tax stamp count. The issue before the court of appeals was whether the declaration of unconstitutionality of the tax stamp statute applied retroactively. The court of appeals ruled that it did apply retroactively, that the circuit court had no subject matter jurisdiction over the tax stamp count, and that the count in the information was void from the beginning because it charged the accused with an offense that was not recognized in law. The Benzel court remanded the cause to the circuit court with instructions to vacate the conviction on the tax stamp count; the conviction on the other count remained intact.

¶ 24. We disagree with the defendant that Benzel supports the remedy of vacating one of the counts of recklessly endangering safety in the present case. In Benzel, the tax stamp count was unconstitutional. Re-instituting the original information against the accused in Benzel would not have changed the fact that one of the counts in the original information was unconstitutional. Under no circumstances could the State try Benzel under the void count. The only remedy available in Benzel was to vacate the tax stamp conviction and leave intact the remaining conviction for possession of marijuana with intent to deliver.

¶ 25. We agree with the State that Benzel is not analogous to the present case. Benzel involved an unconstitutional count in both the original information and in the judgment of conviction. Benzel was not a breach of plea agreement case. The original information in Benzel could not be reinstated. No one asserts that the original information in the present case contains an unconstitutional or otherwise invalid count or that it cannot be lawfully reinstated.

¶ 26. The defendant also relies on cases from other jurisdictions to support his position that the proper remedy for a conviction based on multiplicitous counts in a plea agreement is to set aside the conviction and sentence on the invalid count.

¶ 27. The defendant argues that Jordan v. State, 676 N.E.2d 352 (Ind. Ct. App. 1997), is persuasive authority for his position. In Jordan the Indiana court of appeals vacated one of two multiplicitous counts that resulted from a plea agreement and allowed the conviction and sentence on the other count to stand.

¶ 28. Jordan pled guilty to both a felony murder count and a robbery count. Because the robbery count was the underlying felony to support the felony murder count, the Indiana court of appeals held that the conviction and sentence for both counts violated the constitutional prohibition against double jeopardy. The Jordan court acknowledged that a variety of remedies had been imposed in analogous cases. One remedy was to vacate the plea agreement and allow the State to reprosecute the accused on the original charges. Another remedy was to vacate only certain convictions and sentences and resentence the accused on the remaining valid convictions.

¶ 29. Because Jordan had neither alleged nor proved that he would not have entered the plea agreement had he been properly advised of the principles of double jeopardy, and because he neither asserted nor proved that his guilty plea was involuntary or unintelligent, the Indiana court of appeals concluded that it did not have to vacate the plea agreement and did not have to reinstate the original charges.

¶ 30. Instead, the Indiana court of appeals vacated the robbery conviction and sentence and allowed the felony murder conviction and sentence to stand. Although the effect of the court of appeals' decision was to reduce a 110-year sentence to a 60-year sentence so that the State did not get the full benefit of its plea agreement, the Indiana court of appeals believed that it had taken the wisest path. The court of appeals wrote that its remedy was "the wisest in that it forecloses the possibility that Jordan will be set free in the event the State does not have sufficient evidence to reprosecute a ten year old murder case." The remedy was the best one under the circumstances to avoid a violation of the accused's constitutional guarantee against double jeopardy and at the same time protect the public interest in incarcerating a murderer.

¶ 31. The Jordan decision does not persuade us that vacating one of the multiplicitous counts in the present case is the proper remedy. Rather, we view the Jordan case as persuasive authority for our conclusion in the present case about the appropriate remedy. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions before the negotiated plea agreement. Jordan supports our conclusion that under some circumstances the latter remedy might not he appropriate. We agree with the Jordan decision that a court should examine the available remedies and adopt the one that fits the circumstances of the case, considering both the defendant's and the State's interests.

¶ 32. Although the present case and Jordan similarly involve multiplicitous counts and negotiated plea agreements, the record in the present case does not point to any circumstances that are likely to prevent the State from trying the defendant under the original information or to prevent the defendant from defending himself. Therefore, we view the Jordan decision as persuasive authority for our conclusion about the remedy, not for the defendant's position about the remedy.

¶ 33. The defendant also relies on Burke v. State to support his position that the appropriate remedy in the present case is to vacate one of the multiplicitous counts of recklessly endangering safety. In Burke, the accused was charged with both reckless aggravated assault and intoxication assault and pled guilty to both counts. A jury found the accused guilty of both offenses and assessed his punishment at 15 years' and ten years' confinement, respectively. The trial court ordered the sentences to run concurrently. The accused appealed, arguing that the convictions violated the accused's constitutional guarantee against double jeopardy.

¶ 34. The Texas court of appeals ultimately held that the proper remedy for the double jeopardy violation in that case was to apply the "most serious punishment" test, which requires retaining the offense with the most serious punishment and vacating any remaining offenses that are the "same" for double jeopardy purposes. Thus, the Texas court of appeals vacated the conviction for the lesser charge of intoxication assault on double jeopardy grounds and retained the conviction for the more serious charge of reckless aggravated assault.

¶ 35. The Burke court of appeals also determined, however, that the accused's guilty plea to reckless aggravated assault was involuntary, as the accused had claimed. Therefore, the court of appeals reversed the judgment of conviction on that count, set aside the guilty plea to that count, and remanded the cause for a new trial.

¶ 36. The Burke case is not convincing support for the defendant's position that the proper remedy in the present case is to vacate one of the multiplicitous convictions. Although a guilty plea case, Burke did not involve either a negotiated plea agreement or an amended information. Thus Burke is not sufficiently analogous to the present case to convince us that vacating one of the multiplicitous counts is the proper remedy in the present case.

¶ 37. The defendant ultimately bases his remedy on concepts of fairness. The defendant argues that the remedy he proposes for his multiplicitous convictions is fair because it enables the defendant to bring constitutional violations to the court's attention. The defendant argues that an accused should not be placed in risk of increased punishment by the reinstatement of the original information after he has successfully challenged the unconstitutionality of a conviction.

¶ 38. The defendant makes a good point. Our cases recognize that "the defendant's constitutional and statutory rights to challenge a conviction or sentence should not be 'chilled' by the threat of increased punishment." Nevertheless, the eases also recognize that when one conviction and sentence is vacated on double jeopardy grounds, the validity of the sentence on the other conviction is implicated, resentencing on the valid conviction is permissible, and the circuit court may increase the sentence on the valid conviction. Thus, although the defendant correctly reminds us that he ought not to be punished for exercising his constitutional rights, the cases do not proscribe every increase in a sentence when a defendant challenges his conviction on constitutional grounds.

¶ 39. Relying on different cases from those cited by the defendant, the State argues that the convictions in the present case should be reversed, the negotiated plea agreement vacated, and the original information reinstated. According to the State, the defendant is now reneging on a negotiated plea agreement by challenging the constitutionality of his plea and conviction on one of the two counts. The defendant should not benefit, urges the State, from the State's concessions in the negotiated plea agreement when the defendant is reneging on his promise in the negotiated plea agreement to be convicted on two offenses with a maximum penalty of ten years in prison. According to the State, reversing a conviction on one of the multiplicitous counts gives the defendant the benefit of reducing his maximum sentence from ten years in prison to five years, contrary to the plea agreement.

¶ 40. The State relies on State v. Pohlhammer, 78 Wis. 2d 516, 519, 254 N.W.2d 478 (1977), on rehearing 82 Wis. 2d 1, 260 N.W.2d 678 (1978), in which the accused was charged with three counts of arson with intent to defraud the insurer. Pursuant to a negotiated plea agreement, the State filed an amended information of one count of theft by fraud to which the accused pled guilty. After sentencing, the accused sought to withdraw his plea of guilty on the ground that the statute of limitations had expired on the theft by fraud charge and that the amended information was defective.

¶ 41. The Pohlhammer court concluded that the filing of the amended information was barred by the statute of limitations and that neither the amended information nor the plea thereto should have been accepted. The court permitted the accused to withdraw his plea and set aside the judgment of conviction, permitted the State to withdraw the amended information, and remanded the cause to the trial court for further proceedings on the original information. The court reasoned that the amended information was "conditioned" on the accused's "agreement to plead guilty" and that "[invalidating the plea invalidates the plea bargain."

¶ 42. The State also relies on State v. Briggs, 218 Wis. 2d 61, 64, 579 N.W.2d 783 (Ct. App. 1998), in which the accused entered a negotiated plea agreement with the State, resulting in an amended information that charged the accused with attempted felony murder and armed burglary. The circuit court sentenced the accused to 30 years in prison on the attempted felony murder charge and 40 years in prison on the armed burglary charge, the sentences to be served consecutively.

¶ 43. The accused then challenged his conviction for attempted felony murder because this offense was not a crime under Wisconsin's statutory or common law. The Briggs court agreed with the accused that he had been convicted of a crime that did not exist under Wisconsin law.

¶ 44. The accused argued in Briggs that the appropriate relief was to vacate the conviction for attempted felony murder and leave the conviction and sentence for armed burglary intact. The State argued in Briggs that the convictions based on the plea agreement should be vacated and the original information reinstated.

¶ 45. Relying on the reasoning in the Pohlhammer case, the Briggs court set aside both convictions and the plea agreement because "all are connected and all were the result of an erroneous view of the law." The Briggs court then vacated the amended information and reinstated the original information in order to restore the parties to their positions prior to the negotiated plea agreement that was based on an inaccurate view of the law. The cause was remanded for proceedings on the counts contained in the original information.

¶ 46. We agree with the State that Briggs and Pohlhammer are analogous to the present case and that they suggest the proper remedy in the present case. The Jordan case also gives us insight about remedies.

¶ 47. We agree with the State that the defendant's motion to vacate a conviction on one count and withdraw his plea of no contest to one of the two counts of the amended information constitutes a repudiation of the plea agreement. The agreement was that the defendant would plead no contest to two counts of recklessly endangering safety with a maximum possible sentence of ten years in prison in return for the State reducing one charge, dropping the repeat offender allegations, and recommending a sentence that was less than the possible maximum sentence. When the defendant was successful in withdrawing his no-contest plea to one of the counts of recklessly endangering safety, the basis on which the State had entered the plea agreement was substantially changed.

¶ 48. We conclude that the appropriate remedy in such circumstances ordinarily is to reverse the conviction, vacate the negotiated plea agreement upon which the conviction was based, set aside the amended information, and reinstate the original charges against the accused. But the appropriate remedy depends on the totality of the circumstances. A court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant's and State's interests.

¶ 49. In the present case, examining all the circumstances, the available remedies, and the State's and defendant's interests, we conclude that the parties should be restored to the same positions they respectively held before the defective plea agreement was entered. No claim is made by the' parties and nothing appears in the record that this remedy adversely affects the State's ability to prosecute or the defendant's ability to defend against the counts set forth in the original information. Furthermore, the defendant has not made a persuasive argument that this remedy is fundamentally unfair because it exposes him to the risk of a greater sentence.

¶ 50. Our conclusion about the remedy based on Pohlhammer.; Briggs, and Jordan is also supported by principles of contract law. Plea agreements have been compared to contracts, although the analogy is not precise.

¶ 51. Our conclusion about the appropriate remedy in the present case is congruent with the principle of contract law that recognizes several remedies are available for breaches of contracts to protect the various interests of the contracting parties under the circumstances of a case. One contract remedy is to place the parties back in the positions they would have held if the contract had not been made. This remedy is used when a party to a contract changes its position in reliance on the promise of another party to the contract. The remedy protects a party's reliance interest in the contract.

¶ 52. In the present case the State changed its position by filing an amended information in reliance on the defendant's promise to plead no contest. When the defendant repudiated his plea to one of the counts upon which he was convicted, the State sought to be placed in the position it would have held if the plea agreement had not been made. This remedy would serve to protect the State's reliance interest in the plea agreement and consequently comports with the relevant principles of contract law.

¶ 53. An alternative principle of contract law also supports our conclusion about the appropriate remedy in the present case. Both parties in the present case apparently believed that the terms of the plea agreement were constitutional, even though they were not. Both the State and defendant were thus acting under a mistake of law in negotiating the plea agreement, and this mistake had a material effect on the agreement by relieving the defendant of a substantial part of his performance and adversely affecting the State's prosecution of the case.

¶ 54. The general rule is that when both parties are mistaken about a basic assumption on which a contract was made and the mistake has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party.

¶ 55. If we adhere to contract law doctrines about remedies for breach of contract and mistakes, the plea agreement in the present case should be voided at the request of the State, which is the adversely affected party, and the parties restored to their respective positions before the plea agreement was entered.

IV

¶ 56. Because we agree with the State's proposed remedy, we need not and do not address the State's claim that the doctrine of judicial estoppel bars the defendant in the present case from claiming a benefit from the double jeopardy violation created by the plea agreement.

¶ 57. In summary, we conclude that when the defendant repudiated the negotiated plea agreement on the ground that it contained multiplicitous counts, the defendant materially and substantially breached the plea agreement. We further conclude that when an accused successfully challenges a plea to and a conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, to vacate the plea agreement, and to reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We also conclude, however, that under some circumstances this remedy might not be appropriate.

¶ 58. In the present case, we reverse the judgment of conviction, vacate the plea agreement, and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct such other proceedings that are not inconsistent with this opinion.

By the Court. — The judgment of conviction and the order of the circuit court are reversed and the cause is remanded.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       The Fifth Amendment to the U.S. Constitution states that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Article I, Section 8 of the Wisconsin Constitution states that "no person for the same offense may be put twice in jeopardy of punishment."

       The parties dispute whether the defendant struck the victim with his fist or stomped on the victim's head with his feet.

       When a no-contest plea in a criminal matter is accepted by the circuit court, the plea "constitutes an implied confession of guilt for the purposes of the case to support a judgment of conviction and in that respect is equivalent to a plea of guilty." Lee v. Wisconsin State Board of Dental Examiners, 29 Wis. 2d 330, 334, 139 N.W.2d 61 (1966). See also State v. Suick, 195 Wis. 175, 217 N.W. 743 (1928).

       The State cites United States v. Broce, 488 U.S. 563, 575 (1989); Menna v. New York, 423 U.S. 61, 62 n.2 (1975); State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982); and State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996).

        State v. Hubbard, 206 Wis. 2d at 657.

        See, e.g., State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 643, 579 N.W.2d 698 (1998); State v. Smith, 207 Wis. 2d 258, 272, 558 N.W.2d 379 (1997); State v. Bangert, 131 Wis. 2d 246, 289-90, 389 N.W.2d 12 (1986). A material and substantial breach is a violation of the terms of the agreement that defeats the benefit for which a party bargained. State v. Bangert, 131 Wis. 2d at 289-90.

        State v. Smith, 207 Wis. 2d at 272, 281-82; State v. Bangert, 131 Wis. 2d at 289-90; State v. Rivest, 106 Wis. 2d 406, 414, 216 N.W.2d 395 (1982); State v. Jorgensen, 137 Wis. 2d 163, 168, 404 N.W.2d 66 (Ct. App. 1987).

        See State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997).

       The Benzel court apparently did not consider remanding the case for resentencing on the marijuana charge. State v. Benzel, 220 Wis. 2d 588, 583 N.W.2d 434 (Ct. App. 1998).

        Jordan v. State, 676 N.E.2d 352, 355 (Ind. Ct. App. 1997).

       The Burke case has been before the Texas appellate courts a number of times. See Burke v. State, 6 S.W.3d 312 (Tex. Ct. App. 1999); Burke v. State, 28 S.W.3d 545 (Tex. Crim. App. 1997); Burke v. State, No. 2-98-185-CR, 2001 WL 1340583, at *11, _ S.W.3d _ (Tex. Ct. App. Nov. 1, 2001).

        Burke, No. 2-98-185-CR, 2001 WL 1340583, at *3.

       Id, at *11, *13.

        State v. Martin, 121 Wis. 2d 670, 682, 360 N.W.2d 43 (1985).

        Id., 121 Wis. 2d at 681.

       For example, when a trial court sentences on two convictions, one sentence being invalid, resentencing may be appropriate on the valid conviction when the maximum sentence was not imposed because the trial court's sentence on the valid conviction may have taken into account the sentence on the invalid conviction. Ronzani v. State, 24 Wis. 2d 512, 520, 129 N.W.2d 143 (1964).
      In the present case, resentencing on the valid count is not a viable option because the circuit court in the present case has already imposed the maximum sentence on the valid count. Neither the defendant nor the State suggests resentencing.
      Indeed the defendant argues that the State still gets more than it expected under the plea agreement because the five-year sentence on the one valid count is well in excess of the imposed and stayed probationary disposition recommended by the State at the sentencing hearing. This argument ignores the law that the circuit court, not the State, determines the sentence. The circuit court is not bound by the State's recommendation in determining the sentence. Young v. State, 49 Wis. 2d 361, 367, 182 N.W.2d 262 (1971).

        State v. Pohlhammer, 78 Wis. 2d 516, 524, 254 N.W.2d 478 (1977). The disposition in Pohlhammer was reaffirmed on rehearing in State v. Pohlhammer, 82 Wis. 2d 1, 4, 260 N.W.2d 678 (1978).

       The original information in State v. Briggs, 218 Wis. 2d 61, 64, 579 N.W.2d 783 (Ct. App. 1998), charged the accused with attempted first-degree intentional homicide, armed car theft, armed robbery, armed burglary, and criminal damage to property.

        Id., 218 Wis. 2d at 73.

        State v. Pohlhammer, 78 Wis. 2d 516.

        State v. Briggs, 218 Wis. 2d 61.

        Jordan v. State, 676 N.E.2d 352.

       "[W]e also look to contract law principles to determine a criminal defendant's rights [under plea agreements]... [T]he analogy of plea agreements to private contracts is not precise. The constitutional concerns undergirding a defendant's 'contract rights' in a plea agreement demand broader and more vigorous protection than those accorded private contractual commitments." State v. Scott, 230 Wis. 2d 643, 654-55, 602 N.W.2d 296 (Ct. App. 1999).

       "Availability of particular remedies depends much on the facts of the case." Dan B. Dobbs, Dobbs Law of Remedies § 1.1 at 3 (2d ed. 1993).

        Restatement (Second) of Contracts § 344(b) (1981). The other interests protected are the expectation interest of the promisee in having the benefit of the bargain by being put in as good a position as he or she would have been in had the contract been performed and the restitution interest of the promisee in having restored to him or her any benefit that was conferred on the other party. Restatement (Second) of Contracts § 344(a) and (c) (1981). See Harris v. Metropolitan Mall, 112 Wis. 2d 487, 496-97, 334 N.W.2d 519 (1983) (citing Restatement (Second) of Contracts § 344 (1981)); Thorpe Sales Corp. v. Gyuro Grading Co., Inc., 111 Wis. 2d 431, 438, 331 N.W.2d 342 (1983) (same); Reimer v. Badger Wholesale Co., Inc., 147 Wis. 2d 389, 395, 433 N.W.2d 592 (1988) (same).

        Restatement (Second) of Contracts § 152(1) (1981).


source: Caselaw Access Project

author: N. PATRICK CROOKS, J. DAVID T. PROSSER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tyran N. Anderson, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 00-1563-CR.

      Oral argument October 4, 2001.

    Decided January 24, 2002.

    2002 WI 7
    (Also reported in 638 N.W.2d 301.)

      For the defendant-appellant-petitioner there were briefs and oral argument by Michael K. Gould, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   N. PATRICK CROOKS, J.

¶ 1. TyranN. Anderson seeks review of an unpublished court of appeals decision affirming his conviction for disorderly conduct, contrary to Wis. Stat. § 947.01 (1997-98). Anderson contends that his jury trial waiver was both statutorily and constitutionally inadequate because the circuit court and the State failed to affirmatively approve and consent to the waiver, and the circuit court did not engage him in a personal colloquy confirming the written waiver.

¶ 2. We reject Anderson's argument that his jury trial waiver is invalid because the record lacks the required approval of the court and consent by the State. We conclude that the circuit court approved Anderson's jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and then subsequently conducting a bench trial. Similarly, we conclude that the State consented to Anderson's jury trial waiver by participating in a bench trial without voicing objection.

¶ 3. With regard to Anderson's argument that the circuit court erred by failing to engage him in a personal colloquy, we hold that the record is insufficient to determine whether Anderson's jury trial waiver was knowing, intelligent and voluntary. We, therefore, hold that the circuit court should have engaged Anderson in a personal colloquy. We reverse the decision of the court of appeals, and remand for an evidentiary hearing to determine whether Anderson knowingly, intelligently and voluntarily waived his right to a jury trial. Furthermore, recognizing that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.

I

¶ 4. The relevant facts are not in dispute. In November, 1998, Anderson was charged in Milwaukee County Circuit Court with disorderly conduct, contrary to Wis. Stat. § 947.01. The charge was later amended to battery under Wis. Stat. § 940.19(1).

¶ 5. Assistant State Public Defender Paul Ksicin-ski initially represented Anderson, but moved to withdraw on January 26, 1999, citing attorney-client communication problems. On February 25,1999, the circuit court granted Ksicinski's motion with Anderson's approval. Attorney Scott Connors was appointed as successor counsel. Six months later, Attorney Connors moved to withdraw, also citing, among other reasons, attorney-client communication problems. On October 13, 1999, however, Attorney Connors essentially withdrew his request to withdraw as counsel, acknowledging that Anderson was not entitled to another Public Defender appointment because of the prior withdrawal of Attorney Ksicinski.

¶ 6. The jury trial was scheduled for November 10, 1999. On that morning, when the case was called, Anderson was apparently slow in getting to the defense table and the court, the Honorable Mary M. Kuh-nmuench, presiding, addressed Anderson in the following manner:

THE COURT: Mr. Anderson, you're going to have to do better than that. Get in the defense table. Hang on. You pull that crap in front of a jury and I can tell you — You get your butt from the jury box over to the defense table as quickly as possible. I'm not standing for any of this kind of garbage. Do you understand me?
THE DEFENDANT: (No audible response.)
THE COURT: Do you understand me? I don't want any comments from you. All I need from you is for you to do what I tell you to do when I tell you to do it.

¶ 7. After a brief discussion about prior convictions and jury instructions, the court advised counsel that they would begin picking the jury after lunch. Attorney Connors then informed the court that he had discussed with Anderson the possibility of having a bench trial rather than a jury trial. The court instructed Attorney Connors that he would have "to have a waiver of the jury trial form in the file." Anderson subsequently signed a jury trial waiver. The substance of the waiver reads in its entirety:

And now comes the above named defendant, and in his own proper person hereby expressly waives trial by a jury and consents to immediate trial before the court without a jury.
I will be giving up my right to have my case decided by 12 people sitting as a jury; I understand that all 12 of those people would have to agree in order to reach a . verdict.

¶ 8. After a recess, the court reconvened and discussed Anderson's jury trial waiver. After stating appearances, the complete discussion went as follows:

THE COURT: The Court is in receipt of a waiver of trial by jury that is signed and dated today's date. The Court will receive it and enter it in the trial as a knowing and voluntary waiver of his right to a jury trial. We will proceed with a bench trial at 1:30 this afternoon. Are there any questions of the Court?
MS. ZIMMERS [State]: No.
THE COURT: We'll see you both back at 1:30.

When the proceedings reconvened, the case was presented to the circuit court and Anderson was found guilty.

¶ 9. Anderson appealed his conviction. The Court of Appeals found that Anderson's jury trial waiver was sufficient and affirmed the circuit court's judgment. On March 6, 2001, this court granted Anderson's Petition for Review.

II

¶ 10. A defendant's right to a jury trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. While the right to a jury trial is recognized as a fundamental right, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), it is also well established that a defendant can completely waive the right to a jury trial in favor of a trial by the court. Wisconsin Stat. § 972.02 establishes the procedure for a criminal defendant to waive his right to a jury trial. Section 972.02(1) states:

Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

¶ 11. This case is not the first opportunity for a Wisconsin appellate court to interpret Wis. Stat. § 972.02(1). Rather, previous cases interpreting § 972.02 have estáblished several requirements for determining a valid waiver of the right to a jury trial. The waiver cannot be based on circumstantial evidence or reasonable inferences. Cleveland, 50 Wis. 2d at 670. The defendant, not his attorney, must waive the right to a jury trial by an affirmative act of the defendant himself. State v. Livingston, 159 Wis. 2d 561, 569, 464 N.W.2d 839 (1991). Furthermore, the court must advise the defendant of the unanimity requirement, such that the court cannot accept a jury verdict that is not agreed to by each member of the jury. State v. Resio, 148 Wis. 2d 687, 696-697, 436 N.W.2d 603 (1989). Finally, this court has stated that "[t]he right to a trial by jury is one of the rights that is 'so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458 (1938).'" Resio, 148 Wis. 2d at 694 (quoting State v. Albright, 96 Wis. 2d 122, 130-131, 291 N.W.2d 487 (1980)). Accordingly, a jury trial waiver must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson, 304 U.S. at 464; see also Resio, 148 Wis. 2d at 694.

¶ 12. Anderson claims his jury trial waiver is both statutorily and constitutionally infirm. First, he claims that his jury trial waiver does not comply with the requirements of Wis. Stat. § 972.02(1) because while his jury trial waiver was in writing, the record lacks the required "approval of the court and the consent of the state." Anderson also contends that his jury trial waiver is invalid, because the circuit court failed to engage him in a personal colloquy to determine that his waiver was knowing, intelligent, and voluntary. We independently review both of Anderson's claims, benefiting from the analyses of the circuit court and the court of appeals. "Whether an individual is denied a constitutional right is a question of constitutional fact that this court reviews independently as a question of law." State v. Klessig, 211 Wis. 2d 194, 204, 564 N.W.2d 716 (1997) (reviewing whether defendant waived right to counsel).

¶ 13. Anderson first argues that the record fails to demonstrate approval of the court or consent by the State sufficient to satisfy Wis. Stat. § 972.02(1). Specifically, Anderson relies on Spiller v. State, 49 Wis. 2d 372, 182 N.W.2d 242 (1971), for his position that silence by the court and the State lacks the required affirmative acts, in order to waive the right to a jury trial.

¶ 14. In Spiller, the defendant claimed that he waived his right to a jury trial, making it error for his case to be subsequently tried before a jury. Id. at 373. At his arraignment, Spiller stated that he waived his right to a jury trial. Id. The transcript is silent, however, on the reaction of the district attorney and the court. Id. Nearly eight months later, Spiller's case went to trial before a jury and no mention was made of the alleged jury trial waiver. Id. On appeal, Spiller argued it was error for him to be subject to a jury trial because his jury trial waiver was valid. Focusing on the required approval of the court and consent of the State, this court held that there was no waiver of a jury trial because "silence as consent is not a reasonable inference when affirmative acts of consent and approval are required." Id. at 374. "[SJilence on the part of the district attorney and the court is not tantamount to their respective consent and approval." Id. at 374-375.

¶ 15. The State argues that Wis. Stat. § 972.02(1) does not specify how the court's approval and the state's consent must be expressed, and that this court should infer approval and consent from the fact that the court and the State both proceeded with a court trial. According to the State, Spiller is not controlling because the facts are opposite and applying Spiller does not support the reasonable objectives of the statute. The defendant in Spiller allegedly waived his right to a jury trial, but he subsequently was tried before a jury. In contrast, Anderson waived his right to a jury trial and got what he asked for, a bench trial. The State argues that the approval and consent requirements of the statute are intended to preserve the state's interest in jury trials. When the State does not dispute the jury trial waiver, by silence and by going forward with a bench trial as requested by the defendant, the State argues that a defendant cannot rely on silence by the State and the court to invalidate the waiver.

¶. 16. We agree. Anderson cannot rely on silence by the State, and a somewhat incomplete acceptance by the court, to invalidate his jury trial waiver, when the State and the court both proceeded to a bench trial without objection. Although the court's approval of the jury trial waiver may not have been as explicit as it could have been, the record demonstrates that the court accepted the waiver and proceeded with a bench trial. Specifically, the court stated:

THE COURT: The Court is in receipt of a waiver of trial by jury that is signed and dated today's date. The Court will receive it and enter it in the trial as a knowing and voluntary waiver of his right to a jury trial. We will proceed with a bench trial at 1:30 this afternoon.

This statement demonstrates that the court expressed its approval by accepting Anderson's written waiver, scheduling the bench trial, and later conducting a bench trial in this case.

¶ 17. With regard to the State's consent, we find this case is more akin to United States v. Radford, 452 F.2d 332 (7th Cir. 1971), rather than Spiller. In Radford, the defendant claimed his jury trial waiver was invalid because the United States Attorney failed to sign the jury waiver form. 452 F.2d at 335. Looking at Federal Rule of Criminal Procedure 23(a), the Court of Appeals for the Seventh Circuit held that the purpose of government consent is to protect the government's right to a jury trial. Id. at 335. Accordingly, where the government does not contest the waiver, the government's silence should be considered consent and the "defendant cannot repudiate his signed waiver by asserting the United States Attorney's non-signing as a defect." Id.

¶ 18. The United States Attorney's failure to sign the jury trial waiver is analogous to the State's silence in this case. Because the underlying principle of state consent is to protect the state's interest in jury trials, we find that Anderson cannot rely on the State's silence to invalidate his jury trial waiver. The fact that the State went forward with the court trial, and did not voice any opposition, demonstrates the State's consent to the jury trial waiver in this case.

¶ 19. We next address Anderson's contention that his jury trial waiver is invalid, because the circuit court failed to engage him in a colloquy. Anderson argues that without a colloquy, the court lacks sufficient information to guarantee that relinquishment of the right to a jury trial is knowing, intelligent, and voluntary. Anderson suggests that his written waiver is not sufficient to determine that he knowingly, intelligently, and voluntarily waived the right to a jury trial, because the court admonished him shortly before the waiver was accepted, and the record demonstrates he had problems communicating with his attorney.

¶ 20. Relying on State v. Livingston, 159 Wis. 2d 561, 573, 464 N.W.2d 839 (1991), State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and State v. Moore, 97 Wis. 2d 669, 294 N.W.2d 551 (Ct. App. 1980), Anderson contends that the proper remedy for the court's failure to engage him in a colloquy is reversal of his conviction and remand for a new trial. In all of those cases, the reviewing court found that the defendant did not waive his constitutional right to a jury trial, and ordered a new trial. Livingston, 159 Wis. 2d at 573; Cleveland, 50 Wis. 2d at 670; Moore, 97 Wis. 2d at 671. In Livingston and Cleveland, the defendants themselves made no statement — written or oral — waiving the right to a jury trial. Livingston, 159 Wis. 2d at 565; Cleveland, 50 Wis. 2d at 669. In Moore, the circuit court engaged the defendant in a short colloquy, informing the defendant of his right to a jury trial, but the court never asked the defendant if he wanted a jury trial or wished to waive it. 97 Wis. 2d at 670. Based on these cases, Anderson argues that the circuit court erred by failing to engage him in a colloquy to establish his willingness and intent to give up his right to a jury trial, before accepting the written waiver. See Krueger v. State, 84 Wis. 2d 272, 282, 267 N.W.2d 602 (1978).

¶ 21. The State contends that a personal colloquy is not a statutory or constitutional requirement. Wisconsin Stat. § 972.02(1) does not specifically require a colloquy, and there is nothing in the record to suggest Anderson's waiver was not knowing, intelligent, and voluntary. The State argues that Anderson's failure to protest the bench trial, after defense counsel informed the court of the jury trial waiver, should be construed as "knowing acquiescence." The State also argues that if the court retains any doubt about whether Anderson's waiver was knowing, intelligent and voluntary, the proper remedy is a remand for an evidentiary hearing, rather than reversal of his conviction.

¶ 22. The State contends that Livingston, Cleveland, and Moore do not apply here because unlike the defendants in those cases, Anderson's signed waiver is a personal, affirmative step to waive his right to a jury trial. According to the State, this case is similar to State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct. App. 1999), where the defendant took an affirmative step — a brief personal colloquy on the issue of waiver — and the proper remedy was an evidentiary hearing to determine whether the waiver was knowing, intelligent, and voluntary regarding the jury unanimity requirement. In Grant, the Court of Appeals relied on State v. Klessig, 211 Wis. 2d 194, 207, 564 N.W.2d 716 (1997), and adopted the familiar State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), procedure as the appropriate remedy when the circuit court fails to advise a defendant of the jury unanimity requirement. 230 Wis. 2d at 96, 100.

¶ 23. . We conclude that without a personal colloquy, we are unable to determine that Anderson's jury trial waiver is knowing, intelligent, and voluntary. The right to a jury trial is a fundamental right. State v. Villarreal, 153 Wis. 2d 323, 326, 450 N.W.2d 519 (Ct. App. 1989). As noted previously, this court has held that "[t]he right to a trial by jury is one of the rights that is 'so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458 (1938).'" Resio, 148 Wis. 2d at 694. The waiver of a jury trial therefore must be an intentional relinquishment or abandonment of a known right or privilege. Id. While Wis. Stat. § 972.02(1) establishes the procedure for waiving the right to a jury trial, the statutory requirements are not sufficient to determine whether a defendant's waiver is knowing, intelligent, and voluntary. Therefore, based on our recognition that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial. A colloquy is the clearest means of determining that the defendant is knowingly, intelligently, and voluntarily waiving his right to a jury trial, and a colloquy documents the valid waiver for postconviction motions and appellate proceedings. As we stated in Klessig, 211 Wis. 2d at 206, "a properly conducted colloquy serves the dual purposes of ensuring that a defendant is not deprived of his constitutional rights and of efficiently guarding our scarce judicial resources."

¶ 24. To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; (2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people that must agree on all elements of the crime charged; (3) was aware of the nature of a court trial, such that the judge will make a decision on whether or not he or she is guilty of the crime charged; and (4) had enough time to discuss this decision with his or her attorney. See Wisconsin Judicial Benchbook, vol. 1, CR 22-3 through 22-6 (2d ed. 2001). As with other constitutional rights, "If the circuit court fails to conduct a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver.. . ." Klessig, 211 Wis. 2d at 206 (involving waiver of right to counsel).

¶ 25. We now turn to the facts before us, and what is the proper remedy when the circuit court fails to conduct an adequate colloquy. We hold that the circuit court must hold an evidentiary hearing on whether the waiver of the right to a jury trial was knowing, intelligent, and voluntary. The per se rule of requiring a new trial, based on Livingston, does not apply here because Anderson's written waiver was a personal affirmative step to waive his right to a jury trial. The evidentiary hearing procedure we adopt is already followed to determine whether a defendant's plea was knowing, intelligent and voluntary; see Bangert, 131 Wis. 2d at 274, and to determine whether a defendant knowingly, intelligently, and voluntarily waived his right to counsel; see Klessig, 211 Wis. 2d at 207. Accordingly, as the circuit court did not conduct a personal colloquy in this case, it must now hold an evidentiary hearing to determine whether Anderson knowingly, intelligently, and voluntarily waived his right to a jury trial.

¶ 26. The evidentiary hearing procedure we adopt today stems from the procedure for resolving guilty plea wáivers and has been extended to resolution of waivers of the right to counsel. Klessig, 211 Wis. 2d at 207. The same approach is appropriate here. "Nonwaiver is presumed unless waiver is affirmatively shown to be knowing, intelligent and voluntary." Id. at 204. The State has the burden of overcoming the presumption of non-waiver, and is required to prove by clear and convincing evidence that Anderson's jury trial waiver was knowing, intelligent, and voluntary. See id. at 207. If the State is able to satisfy its burden, the conviction will stand. If the State is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial, the defendant is entitled to a new trial.

¶ 27. The State makes one final argument with regard to an evidentiary hearing. The State contends that even if we find that an evidentiary hearing is the proper remedy, Anderson is not entitled to a hearing, because he has failed to allege that he did not know or understand the right he was waiving when he executed the written jury trial waiver. See State v. Giebel, 198 Wis. 2d 207, 217, 541 N.W.2d 815 (Ct. App. 1995). However, the facts of this case demonstrate that Anderson was having difficulty communicating with his attorneys, and that prior to accepting the jury trial waiver the court admonished Anderson stating, "All I need from you is for you to do what I tell you to do when I tell you to do it." Under such circumstances, we find it appropriate to remand this case to determine whether Anderson's jury trial waiver was knowing, intelligent, and voluntary.

III

¶ 28. In sum, we conclude that while the court's acceptance of Anderson's jury trial waiver did not violate Wis. Stat. § 972.02(1) on its face, Anderson's written waiver is insufficient to establish that he knowingly, intelligently, and voluntarily waived his right to a jury trial. We reject Anderson's argument that his jury trial waiver is invalid because the record lacks the required approval of the court and consent by the State. The court approved Anderson's jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and subsequently conducting a bench trial in this case. The State also consented to Anderson's jury trial waiver by participating in a bench trial without voicing any objection. Because Anderson requested a bench trial, and subsequently received a bench trial, we hold that he cannot rely on the State's silence to invalidate his jury trial waiver.

¶ 29. Although Anderson submitted a written jury trial waiver form, we find that the circuit court erred by failing to engage Anderson in a personal colloquy regarding the jury trial waiver. Recognizing that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial. We explicitly rely on Klessig, where we faced circumstances similar to those presented here, and we mandated the use of a colloquy in every case where a defendant seeks to waive his or her right to counsel. A colloquy is the clearest means of determining that the defendant is knowingly, intelligently, and voluntarily waiving his right to a jury trial, and a colloquy documents the valid waiver for postconviction motions and appellate proceedings. Because the circuit court did not engage Anderson in a personal colloquy, we remand this case to the circuit court for an eviden-tiary hearing to determine whether Anderson knowingly, intelligently and voluntarily waived his right to a jury trial.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court.

DAVID T. PROSSER, J.

¶ 30. (dissenting). Tyran Anderson asked the court to review this case to resolve a conflict between the court of appeals decision in State v. Hoffman, (No. 98-3101-CR, January 18, 2000) and the single-judge court of appeals decision here, both unpublished.

¶ 31. In Hoffman, the defendant signed a written waiver of trial by jury and the case proceeded to a bench trial. There was no colloquy with the defendant on the record before trial and no explicit expression of approval by the court or consent by the state. The court of appeals determined that the absence of an oral colloquy to determine whether the defendant was making a voluntary and knowing choice to give up his right to a jury trial made his waiver "constitutionally infirm." Moreover, the court ruled that the failure of the circuit court and district attorney to take affirmative action to approve or consent to the defendant's waiver violated Wis. Stat. § 972.02(1), citing Spiller v. State, 49 Wis. 2d 372, 182 N.W.2d 242 (1971). The remedy for these deficiencies, the court said, was a new trial, not a remand for a hearing, pursuant to Krueger v. State, 84 Wis. 2d 272, 282, 267 N.W.2d 602 (1978); State v. Livingston, 159 Wis. 2d 561, 573, 464 N.W.2d 839 (1991); and State v. Moore, 97 Wis. 2d 669, 671, 294 N.W.2d 551 (Ct. App. 1980).

¶ 32. In State v. Anderson, No. 00-1563-CR, unpublished slip op. (Wis. Ct. App. Dec. 5, 2000), Judge Ted Wedemeyer came to contrary conclusions on these issues, creating an intradistrict conflict for this court to resolve.

¶ 33. The majority opinion appears to strike a middle ground between the two decisions. Yet, in doing so, it opens the door to a substantial body of new and troublesome law. Because I agree with Judge Wedemeyer's reasoning and conclusions and disagree with the majority's decision to reverse his decision, I respectfully dissent.

rH

¶ 34. The Wisconsin Constitution provides for waiver of jury trial in Article I, Section 5: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law . . . but a jury trial may be waived by the parties in all cases in the manner prescribed by law" (emphasis added).

¶ 35. The legislature prescribed the manner of waiving a jury trial in Wis. Stat. § 972.02(1). The statute reads:

Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court... on the record, with the approval of the court and the consent of the state (emphasis added).

¶ 36. Section 972.02(1) dates back to 1970. § 63, ch. 255, Laws of 1969 (effective July 1, 1970). This section, in turn, was preceded by several earlier statutes, Wis. Stat. § 957.01 (1959), § 357.01 (1925), and § 4687 (1911), which contained similar language authorizing jury waivers in writing. Consequently, Wisconsin statutory law has approved jury waivers in writing for close to a century.

¶ 37. Any question whether Wis. Stat. § 972.02(1) is linked to Article I, Section 5 was settled in Dascenzo v. State, 26 Wis. 2d 225, 132 N.W.2d 231 (1965). In a previous case, Jennings v. State, 134 Wis. 307, 114 N.W. 492 (1908), this court held that an accused could not waive the right to trial by jury in the absence of legislation providing for waiver. The court said: "If it is deemed good public policy to extend the privilege of waiving a jury in criminal cases, such policy should find expression in appropriate legislative action." Jennings, 134 Wis. at 310. Thereafter, the legislature passed a statute — identified in Dascenzo as Wis. Stat. § 957.01(2), the immediate predecessor to Wis. Stat. § 972.02(1) — that prescribed the manner of waiving a jury trial.

¶ 38. This court later interpreted the jury trial waiver statute to permit a defendant's attorney to waive a jury trial on behalf of a defendant, on the theory that the presence and silent acquiescence of the defendant demonstrated the attorney's authority and made the attorney's statement the defendant's own. Dascenzo, 26 Wis. 2d at 230; State ex rel. Derber v. Skaff, 22 Wis. 2d 269, 274, 125 N.W.2d 561 (1964). But in 1978, the court overruled Derber and Dascenzo. In Krueger, the court said:

[W]e now overrule State ex rel. Derber v. Skaff and Dascenzo v. State insofar as they permit a trial court.. . to presume from a defendant's silence that a waiver of the jury trial made by counsel is an expression of the defendant's knowing and voluntary intent. Even if it is reasonable to assume that most defense attorneys will inform a client of the right and its meaning to the defendant, it seems wholly unreasonable to expect a defendant who does not understand these matters to contradict a waiver made by his attorney. We hold that the record must support, without the aid of these presumptions, the conclusion that the defendant in fact made a knowledgeable and voluntary choice.
[W]e further hold that henceforth a record demonstrating the defendant's willingness and intent to give up the right to be tried by a jury must be established before the waiver is accepted. We do not at this time adopt a formal procedure to be followed in making such a record.

Krueger, 84 Wis. 2d at 281-82 (citations omitted).

¶ 39. The court clarified the law in State v. Livingston. The Krueger decision had made no reference to Wis. Stat. § 972.02(1). Livingston, 159 Wis. 2d at 568. However, the Livingston court explained that the court's "reasoning underlying Krueger and the legislature's reasoning in enacting sec. 972.02(1), Stats., are coextensive in relevant part. That is, what was said in Krueger with regard to waiver of trial by jury is directly applicable to sec. 972.02(1)." Id.

¶ 40. The court then quoted with approval a passage from State v. Moore, 97 Wis. 2d at 671-72: "Our supreme court and our legislature . . . have taken a strict per se position; that is, waiver must be in writing or by oral statement in open court. We must abide by that rule." Livingston, 159 Wis. 2d at 569.

¶ 41. Summing up, the Livingston court said that any waiver of the defendant's right to trial by jury must be made by an affirmative act of the defendant:

The defendant must act personally ... The affirmative act by the defendant, in order to constitute a personal waiver, must be such as to comply with at least one of the specific means of effecting a waiver provided in sec. 972.02(1).... If the defendant waives the jury "in writing" under the statute when accepting the written waiver, the judge still should question the defendant as to the voluntariness and understanding of his action.

Id. at 569-70 (emphasis added).

¶ 42. The Livingston court described the best practice to follow in addition to compliance with the statute. Now the majority goes beyond the articulation and urging of the best practice to mandate a new rule that conflicts with the statute.

II

¶ 43. Conceivably, this court could have held that the United States Constitution or the Wisconsin Constitution requires a colloquy between a defendant and the court before the defendant may waive the right to jury trial. However, such a conclusion would not have been well founded and would have been embarrassingly inconsistent with many previous court pronouncements. Thus, the court did not pursue that path.

¶ 44. Alternatively, the court could have reasoned that the statute was sufficiently ambiguous that adding new requirements for an effective waiver would not conflict with the statutory text. But that position would not have been tenable because the statutory language is clear.

¶ 45. Finally, the court could have tried to rely upon its superintending authority contained in Article VII, Section 3(1) of the Wisconsin Constitution. But this court's superintending authority over all courts is case specific, contemplating the use of supervisory writs and individual relief. It does not empower this court to rewrite statutes in individual cases to effect some judicial objective. The supreme court may modify or suspend a statute relating to pleading, practice, and procedure when the court promulgates a rule pursuant to Wis. Stat. § 751.12. But that procedure is entirely different from supplementing statutes with judicial mandates whenever the court thinks it can do a better job than the legislature.

¶ 46. Hence, the majority simply mandates a new rule without explaining its source of authority:

The right to a jury trial is a fundamental right.... As noted previously, this court has held that "[t]he right to a trial by jury is one of the rights that is 'so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458 (1938).'" [State v.] Resio, [148 Wis. 2d 687, 694, 436 N.W.2d 603 (1989)]. The waiver of a jury trial therefore must be an intentional relinquishment or abandonment of a known right or privilege. Id. While Wis. Stat. § 972.02(1) establishes the procedure for waiving the right to a jury trial, the statutory requirements are not sufficient to determine whether a defendant's waiver is knowing, intelligent, and voluntary. Therefore, based on our recognition that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.

Majority op. at ¶ 23.

¶ 47. In this passage, the majority seeks to draw a sharp distinction between the procedure for making a waiver (waiver "in writing" or waiver "by statement in open court") and a requirement that the waiver be knowing, intelligent, and voluntary. In the process, it disregards Article I, Section 5, and it renders Wis. Stat. § 972.02(1) meaningless.

¶ 48. In this new regimen, there is no presumption that a written waiver or a waiver by statement in open court by the defendant is adequate. Standing alone, neither is deemed adequate. In fact, a waiver "in writing" and a waiver by "statement in open court" together are inadequate because, according to the majority, "we mandate the use of a personal colloquy in every case." Majority op. at ¶ 23.

¶ 49. This holding elevates ritual over common sense. It places past convictions in jeopardy, and it creates landmines for future cases.

¶ 50. First, as noted, the decision makes Wis. Stat. § 972.02(1) irrelevant because compliance with the statute means absolutely nothing. This is contrary to our decision in Livingston and other cases.

¶ 51. Second, the decision appears to change the law with respect to knowing and voluntary waiver of a jury trial. In State v. Resio, 148 Wis. 2d 687, 691, 436 N.W.2d 603 (1989), the court reviewed a case in which there was a colloquy with the defendant in connection with his waiver of a jury trial, but the defendant was not made aware of the requirement that a verdict in a jury trial must be unanimous. The court affirmed the waiver, saying:

We agree with the Seventh Circuit in United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983), cert. denied, 464 U.S. 1072 (1984), that a defendant's waiver of the right to a trial by jury is valid when he or she understands the basic "purpose and function" of a jury trial... .
. . . [T]he key feature of the right to a jury trial is that the defendant's case is tried before a group of twelve fellow citizens in the community rather than by a single state judicial official. When a defendant waives the right to a jury trial understanding that his or her guilt or innocence will be determined by a single judge rather than by a group of twelve lay persons, that waiver is valid and effective.

Id. at 695-96 (emphasis added). The emphasized language in Resio cannot be viewed as a correct statement of law after today's decision.

¶ 52. Third, the majority's new rule is at odds with recent precedent. For example, in State v. Hansford, 219 Wis. 2d 226, 230, 580 N.W.2d 171 (1998), the court held that Article I, Section 7 of the Wisconsin Constitution guarantees the right to a jury of 12 persons in all criminal cases, striking down a state statute that mandated six-person juries in misdemeanor cases. The court reversed Hansford's conviction for obstructing an officer because he had timely filed a motion for a 12-person jury. But then in State v. Huebner, 2000 WI 59, ¶ 26, 235 Wis. 2d 486, 611 N.W.2d 727, the court held that a defendant waived his right to a 12-person jury because both the defendant and his counsel failed to request a 12-person jury or to object to a six-person jury. They took no affirmative action; their silence constituted waiver. Was the Huebner decision incorrect?

¶ 53. In another case, State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 (1999), this court considered the question whether Wis. Stat. § 972.13(1) requires that a defendant expressly and personally articulate a plea of guilty or no contest on the record in open court in order for a judgment of conviction to be entered on the plea. The record in Burns was clear that the defendant was never directly asked the question: "How do you plead?" and that he never stated his plea to the charged offense on the record. Id. Nonetheless, the court affirmed his conviction because it concluded that the only inference possible from the totality of the facts and circumstances in the record was that the defendant intended to plead no contest. Id. at 764.

¶ 54. The court spoke of its concerns about pleas:

[T]his court has deep and continuing concerns about affirming a conviction based on a plea of guilty or no contest when the defendant has not expressly and personally articulated the plea on the record in open court. Pleading guilty or no contest is a serious event, a "serious and sobering occasion." By entering such pleas, defendants relieve the state of the heavy burden of proving their guilt beyond a reasonable doubt. They also give up important constitutional rights [such as trial by jury] ... A defendant expressly and personally pleading guilty or no contest on the record in open court is the best way for a circuit court to assure itself that the defendant has personally made the decision to so plead.

Id. at 764-65. Nonetheless, the Burns court did not rely on ritualistic words. It looked to the totality of the facts and circumstances to determine the defendant's intent to plead.

¶ 55. In Burns, the court spoke of the best practice for the circuit court in taking a plea:

Recognizing the circuit courts' responsibility to do justice and to manage caseloads efficiently, this court urges circuit courts to follow the usual and strongly ■ preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record.

Id. at 765. The court offered a similar admonition on jury waivers in Livingston, 159 Wis. 2d at 570, as previously discussed in this dissent.

¶ 56. There are sound policy reasons for plea colloquies and jury waiver colloquies on the record in open court. This court is authorized to utilize the rule-making procedures in Wis. Stat. § 751.12 to require these colloquies as a matter of statutory law. That is very different, however, from overriding the terms of a statute in judicial opinions whenever the court is moved to do so.

¶ 57. In my view, this court ought to follow Wis. Stat. § 972.02(1) by giving a presumption of validity to a jury waiver "in writing" or a jury waiver "by statement in open court." I agree with the proposition that a colloquy to determine whether the waiver is knowing, intelligent, and voluntary is desirable and should be encouraged. But a defendant who waives the right to trial by jury "in writing" or "by statement in open court" while benefiting from the assistance of counsel — and then has a bench trial — should be required to make a prima facie showing that his or her waiver was not knowing, intelligent, and voluntary before he or she is entitled to a hearing. The defendant should not be given an automatic new trial, as was afforded in Hoffman.

Ill

¶ 58. The totality of facts and circumstances in this case leaves no doubt that Tyran Anderson's waiver of a jury trial was knowing, intelligent, and voluntary. Hence, no additional hearing is required. The circuit court's findings should be affirmed.

¶ 59. Anderson was charged with disorderly conduct on December 9,1998, for an incident that occurred the previous November 18. The charge was later amended to battery. From Anderson's initial appearance on December 9,1998, to November 10,1999, when Anderson's case was tried to the court, Anderson appeared in court at least 11 times. He was always represented by counsel.

¶ 60. The record reveals that the presiding judicial officers mentioned jury trial repeatedly during these appearances. On January 26, 1999, Anderson's attorney requested a jury trial date. The court scheduled jury trials for March 25, 1999, then June 23, 1999, then September 16, 1999, but all had to be rescheduled for various reasons, with discussion and explanation in the presence of the defendant.

¶ 61. On October 13, 1999, Circuit Judge Mary Kuhnmuench scheduled a jury trial for November 10, 1999. The court engaged in an extensive colloquy with the defendant. The following passages are part of that colloquy:

THE DEFENDANT: I am sorry the Court has to deal with something like this, even though it is fictitious... . I intend going to trial with it. Even if the case was reissued as a battery, I still intend on going on with the case to prove my innocence.... I haven't gathered everything I need yet. The conflicting statements that [the complainant] made in my revocation hearing, conflicting statements that she made on the police report, on the victim/witness report, and things like that.
I intend on pursuing this case to the full extent, battery, disorderly or whatever....
THE COURT: All right. We will give you a jury trial date, and Mr. Connors remains as your attorney of record and will represent you in this matter at jury....
. . . [Y]ou are to have absolutely no contact with [the complainant]... until this case is resolved through either a jury trial or with a guilty or not guilty verdict.
... If you violate that, don't come back to me and say, "I didn't understand what you meant, Judge." You seem to be an articulate and intelligent man. You understand fully what I am saying to you here....
THE DEFENDANT: No contact will be made.
THE COURT: All right. Very good. We will give you a jury trial date.

¶ 62. On the date set for jury trial, all parties appeared before Judge Kuhnmuench. Attorney Scott Connors had been given additional time to confer with the defendant before the pre-trial hearing. Attorney Connors said he expected to call the defendant in his own defense, necessitating a discussion of the defendant's criminal record in relation to anticipated impeachment before the jury. Anderson had two convictions for robbery, two convictions for burglary, a conviction for receiving stolen property, and a felony conviction for intimidation of a witness. There was no dispute about the number of convictions, which Connors said he had discussed with the defendant. Counsel also discussed jury instructions.

¶ 63. Then, in the presence of the defendant, the following exchange occurred:

ATTORNEY CONNORS: One quick matter. There is— I've discussed the possibility with Mr. Anderson of having a bench trial instead of a jury trial, and it's my understanding there's a very good possibility at 1:00 that we could have a bench trial. Would that be a problem?
THE COURT: Not at all, but I'm bringing the jury up anyway, and I'm going to require you to have a waiver of the jury trial form in the file (emphasis added).

¶ 64. After a recess, court reconvened. The defendant had submitted a signed form that read as follows:

And now comes the above named defendant, and in his own proper person hereby expressly waives trial by a jury and consents to immediate trial before the court without a jury.
I will be giving up my right to have my case decided by 12 people sitting as a jury; I understand that all 12 of those people would have to agree in order to reach a verdict.

¶ 65. In the presence of Tyran Anderson and his attorney, the court then stated:

The Court is in receipt of a waiver of trial by jury that is signed and dated today's date. The court will receive it and enter it in the trial as a knowing and voluntary waiver of his right to a jury trial. We will proceed with a bench trial at. 1:30 this afternoon. Are there any questions of the court ? (Emphasis added.)

¶ 66. There were no questions or protestations. After a lunch break, the case went to trial before the court.

¶ 67. The defendant now argues to this court that although he complied with the requirements of the jury waiver statute, his actions did not satisfy the minimum requirements of other law. The majority responds that it cannot tell on this record whether Anderson's waiver was knowing, intelligent, and voluntary. Ironically, it makes this statement at the same time it concludes that by silently going forward, the state clearly demonstrated its consent to waive a jury trial.

¶ 68. I disagree with the majority's conclusion. Tyran Anderson was an experienced participant in the criminal justice system with six criminal convictions and a revocation of probation. After his eleventh court appearance in this case, with counsel at his side through every step of the proceedings, Anderson signed an explicit jury waiver form that had been developed for use in the courts of Milwaukee County in compliance with Wis. Stat. § 972.02(1) and case law. His counsel represented on the record to the court that he and the defendant had discussed the possibility of waiving a jury trial. Anderson never disputed that assertion. On the contrary, he affirmed his attorney's statement by signing the form. Thereafter, in the defendant's presence, the circuit court found the waiver knowing and voluntary. The defendant was asked if he had questions and he had none. One likely motive for the defendant's jury waiver was his intent to testify, recognizing that six criminal convictions would tend to undercut the credibility of his testimony before a jury.

¶ 69. The record in this case contains overwhelming evidence that Tyran Anderson made a knowing, intelligent, and voluntary waiver of his right to a jury trial. See Resio, 148 Wis. 2d at 695-96. Because the majority reaches a different conclusion and because the majority initiates other actions that I cannot support, I respectfully dissent.

       Although not relevant to the merits of this case regarding the validity of Anderson's jury trial waiver, we note an inconsistency in the record. The trial court proceedings reveal that Anderson was convicted of battery, contrary to Wis. Stat. § 940.19(1). Anderson was also sentenced pursuant to a judgment of conviction for battery. The written judgment of conviction, however, shows Anderson was convicted of disorderly conduct.

       All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted.

       Wisconsin Stat. § 947.01 states in full:
      947.01 Disorderly Conduct. Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

       Wisconsin Stat. § 940.19(1) states in full:
      940.19 Battery; substantial battery; aggravated battery. (1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

       The Sixth Amendment to the United States Constitution provides as follows:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
      Article I, Section 7 of the Wisconsin Constitution provides as follows:
      Rights of accused. SECTION 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions hy indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

       The state consent requirement was first established in 1949, see § 120, ch. 631, Laws of 1949, and is based on Federal Rule of Criminal Procedure 23(a). See State v. Murdock, 2000 WI App 170, ¶ 21, 238 Wis. 2d 301, 617 N.W.2d 175 (citing 1949 S.B. 474 and Senate Amendment 5). Federal cases addressing the government consent requirement, therefore, are instructive regarding the interpretation of Wis. Stat. § 972.02(1). See id.

       Federal Rule of Criminal Procedure 23(a) is nearly identical to Wis. Stat. § 972.02(1). Rule 23(a) states:
      (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.

       The Court of Appeals for the Seventh Circuit relied on Singer v. United States, 380 U.S. 24 (1965). In Singer, the defendant offered to waive the right to a jury trial and the court was willing to approve the waiver, but the government refused to give its consent. Id. at 25. The United States Supreme Court examined the government consent requirement and found that the requirement was designed to protect the government's interest in a trial by jury.
      We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate * interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.

        Id. at 36.

       We disagree with the dissent's application of the "totality of facts and circumstances" test to determine the validity of Anderson's jury trial waiver. Dissent at ¶ 58. The dissent gets this test from State v. Burns, 226 Wis. 2d 762, 774, 594 N.W.2d 799 (1999), where this court stated, "that the only inference possible from the totality of the facts and circumstances of this case is that this defendant intended to plead no contest." We decline to engage in a similar analysis because, unlike here, in Burns the circuit court engaged the defendant in a lengthy personal colloquy, see id. at 767, and the defendant signed a plea questionnaire and waiver of rights form. Id. at 766-767. In contrast, while Anderson signed a jury trial waiver form, the circuit court did not engage Anderson in any personal colloquy regarding his decision to waive his right to a jury trial. Based on the facts presented here, we therefore, disagree with the dissent's "totality of facts and circumstances" analysis.

       We disagree with the dissent's conclusion that our decision to mandate a colloquy conflicts with Wis. Stat. § 972.02(1), and makes compliance with the statute irrelevant. Dissent at ¶¶ 42, 50. Rather, a colloquy enhances the statutory requirements because we conclude that a colloquy is the best procedure to determine that a defendant is knowingly, intelligently and voluntarily relinquishing a fundamental right.

       We adopt the clear and convincing burden of proof from our decision in State v. Klessig, 211 Wis. 2d 194, 207, 564 N.W.2d 716 (1997), involving waiver of the right to counsel. We held that the State is required to prove, by clear and convincing evidence, that the defendant's waiver of counsel was knowing, intelligent and voluntary. Klessig, 211 Wis. 2d at 207; see also State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986) (requiring State to show clear and convincing evidence that defendant's plea was knowing, intelligent and voluntary). We further held that the clear and convincing evidence standard would satisfy the State's burden of overcoming the presumption of non-waiver. Klessig, 211 Wis. 2d at 207. While we recognize that this burden of proof is sometimes stated as clear, satisfactory and convincing evidence, we state the burden of proof as applied in Klessig and Bangert, clear and convincing evidence. See Wis JI — Criminal 140A (burden of proof in forfeiture actions); see also City of Milwaukee v. Wilson, 96 Wis. 2d 11, 22, 291 N.W.2d 452 (1980). For these reasons, we adopt the clear and convincing standard of proof for establishing that a defendant's jury trial waiver was knowing, intelligent and voluntary.

       The dissent contends that we are simply mandating a new rule without explaining our source of authority. Dissent at ¶ 46. The dissent, however, ignores our reliance on State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997), where this court similarly mandated the use of a colloquy in every case where a defendant seeks to waive his or her right to counsel. As stated above, we explicitly rely on Klessig for our authority to mandate a colloquy where a criminal defendant seeks to waive his or her right to a jury trial. Although not explicit in Klessig, the court seemed to rely on our superintending authority in Article VII, Section 3 of the Wisconsin Constitution to mandate a colloquy in that case. Our superintending authority "enables the court to control the course of ordinary litigation in the lower courts" and "is as broad and as flexible as necessary to insure the due administration of justice." Arneson v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996) (quoted source omitted). As demonstrated by our holding in Klessig, our superintending authority is broad enough to require a colloquy where a defendant seeks to waive a fundamental right. Accordingly, we rely on Klessig for our authority to mandate a colloquy where a defendant seeks to waive his or her right to a jury trial.

       Article VII, Section 3(1) of the Wisconsin Constitution states that "[t]he supreme court shall have superintending and administrative authority over all courts." This language is based in large part upon the same section of the 1848 constitution: "The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same." Wis. Const, art. VII, § 3 (1849). See Revised Statutes of Wisconsin (1849) at 28-29.
      Neither the old constitutional language nor the new constitutional language empowers this court, as part of its superintending authority, to rewrite statutes in individual decisions. The superintending authority over all courts embodies authority "to control the course of ordinary litigation" in inferior courts, State ex rel. Fourth Nat'l Bank of Philadelphia v. Johnson, 103 Wis. 591, 613, 79 N.W. 1081 (1899); it does not authorize the court to erase a valid exercise of legislative power in an opinion.

       Wisconsin Stat. § 751.12, Rules of pleading and practice, provides in relevant part:

        The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge or modify the substantive rights of any litigant.... Ml statutes relating to pleading, practice and procedure may be modified or suspended by rules promulgated under this section. No rule modifying or suspending such statutes may he adopted until the court has held a public hearing with reference to the rule.
      Wis. Stat. § 751.12 (emphasis added).

       As here, the defendant in Burns had a competent attorney at his side during the relevant proceedings. That is one of the facts and circumstances that ought to be considered.