¶1(concurring in part; dissenting in part). Although I agree with the majority's conclusions regarding Simpson's claims of ineffective assistance of counsel, I disagree with the majority's analysis of his right to testify.
¶2This case presents a narrow question: can the postconviction motion record alone establish that a defendant waived the right to testify, or must the trial record establish that the defendant waived the right to testify prior to the completion of the trial? The majority ignores this important distinction, asks only "whether the record demonstrates that the defendant knowingly and voluntarily waived the right," majority op. at 778-779, and mistakenly implies that this case is controlled by our recent decision in State v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993).
¶3In Wilson, we concluded that the trial record established the defendant's waiver of his right to testify. We based that conclusion largely on the trial court's on-the-record summary of an off-the-record side-bar conference concerning whether the defendant would *788testify. 179 Wis. 2d 672-675, 508 N.W.2d at 48-49. In Wilson, it is not clear whether the trial court made that record just before or sometime after the point at which the defendant would have testified. What is clear, however, is that the trial court made that record during the trial.
¶4In Wilson, we also relied on information developed at the postconviction motion in concluding "that the matter of Wilson's testifying at trial was fully explained to him by [trial counsel] and that Wilson knew he had the final say in deciding whether to testify or not." Id. at 674, 508 N.W.2d at 49. Would that post-conviction record, standing alone, have supported waiver absent the trial record that seemed essential to our conclusion? Wilsondoes not say. To answer that question in this case, we must refer to the critical precedent on which Wilsonis based.
¶5In Wilson, we relied on the rationale of Krueger v. State, 84 Wis. 2d 272, 267 N.W.2d 602, cert. denied, 439 U.S. 874 (1978). We explained:
In Krueger, the Wisconsin Supreme Court considered whether, based upon the trial and supplemental records, the defendant validly waived his right to a jury trial when defense counsel entered an oral waiver and the defendant remained silent. The court concluded that the defendant had indeed waived his right to a jury trial but held "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."
¶6Wilson, 179 Wis. 2d at 671, 508 N.W.2d at 48 (quoting Krueger, citation omitted; emphasis added). In Wilson, the record of waiver derived primarily from the trial and secondarily from the postconviction motion. Here, *789by contrast, there is absolutely no record of waiver from the trial. This violates the Kruegerprinciple that "a record demonstrating [waiver] be established before the waiver is accepted." Based on Wilson, I conclude that this principle applies with equal force to waiver of the right to testify. Further, based on the clear implications of Kruegerand Wilson, I conclude that both constitutional principles and prudent trial practices preclude any exception that would allow a postconviction motion record to suffice in the complete absence of a trial record of waiver.
¶7The reason is clear. If a trial court fails to clarify a defendant's waiver on the record at the appropriate time, the defendant's opportunity to preserve the right is lost. Thus, for the jury waiver examined in Krueger, the record of the defendant's waiver had to have been "established," of course, "before the waiver [was] accepted" — before jury selection otherwise would have taken place. Then, if a defendant does not validly waive the right to a jury trial, a jury still can be selected. Likewise, for the right to testify examined in Wilsonand in this case, a defendant's waiver properly would be established immediately prior to the time the defendant otherwise would testify or, at the very least, certainly must be established before the parties finally rest their cases. Then, if the defendant does not waive this right, the defendant still can testify.
¶8The conclusion I offer would not necessarily make a postconviction motion irrelevant to the determination of the waiver issue. A postconviction hearing, however, would only be needed to develop further evidence in the event of a challenge to the knowing or voluntary nature of the previous, on-the-record waiver.
¶9Under Kruegerand Wilson, trial courts must not allow the waiver of the right to testify to be left to *790silence, chance, or assumptions subject to dispute at postconviction motions. Moreover, this court should not slide by the real issue of this appeal. In doing so, the majority jeopardizes defendants' trial rights, countenances casual trial court practices, and assures countless, unnecessary postconviction motions and appeals. Accordingly, on this significant issue, I respectfully dissent.