Peter J. Smith, pro se , was convicted at a bench trial in the Traffic Violations Bureau of the State Court of Coweta County “TVB” upon one count of following too close OCGA § 40-6-49, one count of failure to maintain lane OCGA § 40-6-48, and one count of driving too fast for conditions OCGA § 40-6-180. He was sentenced concurrently to 12 months probation, fines of $1250 $1,000, $125, $125 and the suspension of his driver’s license for six months. He appeals claiming that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial. Because Smith raises his claim for the first time on appeal through appellate counsel, the record is insufficient to determine whether Smith knowingly, voluntarily and intelligently waived his right to a jury trial. Consequently, the judgment must be vacated and the case remanded for an evidentiary hearing thereon. The Supreme Court of Georgia has held OCGA § 40-13-60 unconstitutional to the extent it may be interpreted as limiting a traffic violator to a bench trial, Geng v. State , 276 Ga. 428, 431 2 578 SE2d 115 2003,1 this for “denying a criminal defendant who is subject to potential punishment as a misdemeanant, the right to trial by jury.” Id. Nonetheless, the intent and scheme of this Code section remains intact. Id. Pertinently, “an offender may elect to have his case summarily disposed of in the TVB; but one who files a proper demand for jury trial is guaranteed that right under our constitution.” Id. Given the foregoing, to elect summary disposition before the TVB in lieu of filing a demand for a jury trial de facto waives the right to a jury trial as a misdemeanant. It is well-settled, however, that “a criminal defendant must personally and intelligently participate in the waiver of his constitutional right to a jury trial. Pirkle v. State , 221 Ga. App. 657 472 SE2d 478 1996, citing Patton v. United States , 281 U. S. 276 50 SC 253, 74 LE 854 1930.” Whitaker v. State , 244 Ga. App. 241, 243 4 535 SE2d 283 2000.
In the event that a defendant questions the waiver of such right, it is the State’s burden to show that the waiver was knowingly and intelligently made: “1 by showing on the record that the defendant was cognizant of the right being waived; or 2 by filling a silent or incomplete record with extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. Cits..” Punctuation omitted. Jones v. State , 212 Ga. App. 676, 679 2 442 SE2d 908 1994; Bostic v. State , 252 Ga. App. 242, 243 1 555 SE2d 894 2001.
