¶1SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
¶2By our earlier opinion in this case we reversed and dismissed Bobby Joe Elmore’s conviction for driving his car left of center in violation of Ark. Code Ann. § 27-51-301 (1987). In a petition for rehearing the State contends we erred in dismissing the case rather than remanding for retrial.
¶3We agree with the State’s contention for two reasons. Elmore sought only reversal and remand rather than dismissal. Failure to grant a jury trial is the kind of trial error which, unlike insufficiency of the State’s evidence, does not require dismissal under the double jeopardy clause. See, e.g., Nard v. State, 304 Ark. 163-A, 801 S.W.2d 634 (supplemental opinion, 1990).
¶4In considering the State’s second point, we were given pause by the thought that a bald failure to honor a defendant’s request for a jury trial should result in the defendant having to suffer retrial. We are convinced, however, the law requires it.
¶5In United States v. Tateo, 377 U.S. 463 (1963), the Supreme Court discussed the balance between the interests of government and those of the accused when the matter of “mere trial error” or something more fundamental is at issue. Tateo contended he should not be retried because his change of plea from not guilty to guilty, which was found to have been coerced by remarks of the judge at his trial, resulted in his case not going to a jury. The Supreme Court wrote:
We find this argument unconvincing. If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial. [377 U.S. at 466-67]
¶6The decision is modified to state that the case is remanded to the Circuit Court for a new trial.