Foley, J.
Maggie E. Winans (“Winans”) was convicted after a bench trial of domestic battery1 as a Class A misdemeanor and resisting law enforcement2 as a Class A misdemeanor. Winans appeals her convictions and raises the following issue for our review: whether the trial court committed fundamental error when it failed to reset the matter for a jury trial after her pre-trial diversion agreement was terminated. We conclude that reversible error occurred, and we, therefore, reverse Winans’s convictions and remand for a jury trial.
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Here, the record does contain a request for a jury trial as Winans timely requested a jury trial at the outset of this case, and nothing in the record indicates that she subsequently waived her explicitly requested right to a jury trial. Therefore, the record does not establish a valid waiver of Winans’s right to a jury trial.
Further, the record reveals that, after Winans timely filed her demand for a jury trial, she entered into a pre-trial diversion agreement, under which, the State would withhold prosecution of her charges, and if Winans complied with the terms of the agreement, her charges would be dismissed twelve months after execution of the agreement. The agreement did not contain any terms regarding a written waiver of jury trial by Winans. Several months after signing the agreement, Winans was discharged from the pre-trial diversion program. Consequently, the State’s prosecution of Winans resumed, and the trial court issued an order setting the matter for a pre-trial conference. Winans’s original attorney withdrew, and a new attorney entered an appearance. This new attorney moved to continue the pre-trial conference twice. The trial court set the matter for bench trial after the pre-trial conference was held, and Winans’s counsel subsequently moved to continue the bench trial several times. However, at no time after Winans was discharged from the pre-trial diversion agreement did she personally waive her right to a jury trial that she had previously explicitly requested. The effect of Winans’s discharge from the pretrial diversion program was to return her to the original position that she occupied before she entered into the pre-trial diversion program, i.e., being prosecuted for domestic battery and resisting law enforcement. 3 Thus, the trial court should have set Winans’s case for a jury trial following her discharge from the pre-trial diversion program. The trial court committed fundamental error when it held a bench trial without obtaining a valid waiver of the right to a jury trial. See Duncan, 975 N.E.2d at 844 (stating that it has been held that a violation of the right to trial by jury is a fundamental error and cannot be harmless).
The State contends that Winans invited the error she complains of, namely that she was tried in a bench trial and not a jury trial. However, the State does not cite any legal authority regarding invited error with respect to a jury trial waiver
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The record before us fails to establish that Winans’s failure to object to the bench trial settings was part of a deliberate, well-informed trial strategy. Where, as here, a defendant preserves her right to a jury trial, failure to object to a subsequently scheduled bench trial is insufficient to constitute waiver. See Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989) (refusing to find that appellant had waived his right to a jury trial, even though appellant failed to object at the bench trial, because the record did not indicate that appellant “expressed a conscious choice” to give up the right to trial by jury). We, therefore, reverse Winans’s convictions and remand for a jury trial.
Reversed and remanded.
Altice, C.J., and May, J., concur.