People v. Masonis

• Citation: 58 Mich.App. 615,228 N.W.2d 489
• Decision Date: 13 February 1975
• Docket Number: No. 1,Docket No. 19831,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Thomas MASONIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 489

228 N.W.2d 489

58 Mich.App. 615

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Thomas MASONIS, Defendant-Appellant.

Docket No. 19831.

Court of Appeals of Michigan, Division No. 1.

Feb. 13, 1975.

Released for Publication May 8, 1975.

Bruce R. Saperstein, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., William A. House, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and BRONSON and CAVANAGH, JJ.

CAVANAGH, Judge.

Defendant appeals from his conviction in Detroit Recorder's Court, Traffic and Ordinance Division, of the offense of driving a motor vehicle while under the influence of intoxicating liquor contrary to M.C.L.A. § 257.625, M.S.A. § 9.2325. The defendant was sentenced to pay a $100 fine or to serve a term of 30 days in the Detroit House of Correction, to pay $200 costs, was placed on probation for six months, no driving, and required to attend the highway safety program and to report as directed.

Defendant assigns as error the invalidity of his waiver of a jury trial, the trial court's failure to specifically advise him that he was being represented by a student attorney, and the trial court's denial of defense counsel's motion for adjournment in order that a medical witness might be presented.

M.C.L.A. § 763.3, M.S.A. § 28.856 gives defendants in criminal cases the right to waive a jury trial. 'Except in cases cognizable by a justice of the peace', this waiver must be in writing, signed by the defendant, filed in the cause, and made a part of the record. Under M.C.L.A. § 774.1, M.S.A. § 28.1192, an offense punishable by a maximum fine of $100 and/or a maximum sentence of three months imprisonment is cognizable by a justice of the peace. The penalty for 'DUIL' falls within this structure. M.C.L.A. § 257.625b, M.S.A. § 9.2325(2). M.C.L.A. § 600.9922, M.S.A. § 27A.9922 states that statutory references to the abolished justice of the peace courts are deemed to refer to the district court, unless the context otherwise indicates. Thus, a written waiver of jury trial was not statutorily compelled. See People v. Ulbrick, 24 Mich.App. 437, 180 N.W.2d 287 (1970).

A number of cases have held that in cases cognizable by a justice of the peace a waiver of the right to jury trial may be implied. People v. Weeks, 99 Mich. 86, 57 N.W. 1091 (1894); People v. Redman, 250 Mich. 334, 230 N.W. 196 (1930); People v. DeVine, 271 Mich. 635, 261 N.W. 101 (1935); People v. Ulbrick, 24 Mich.App. 437, 180 N.W.2d 287 (1970). See also People v. Edwards, 51 Mich.App. 403, 214 N.W.2d 909 (1974).

In Weeks, the waiver was upheld where the trial court asked the defendant if he desired a jury, and he replied that the court could do as it chose. The prosecutor stated he did not desire a jury, and a bench trial was held. In Redman, the defendant was charged with the same offense involved in the present case. At the beginning of the trial defendant through his attorney expressly waived his right to a jury trial. Since there was no requirement that the waiver be in writing, it was upheld.

The implied waiver theory was extended in People v. DeVine, Supra, which held that where defendant was represented by counsel, 'by going to trial before the court without objection and without any indication of a desire for a jury trial in a misdemeanor case, he must be held to have waived by implication trial by jury'. 271 Mich. 639, 261 N.W. 102. Likewise, in People v. Ulbrick, Supra, the waiver was upheld where the defendant was represented by counsel and failed to indicate a desire for a jury trial.

These cases support a conclusion that the waiver by defendant in the present case was effective. However, doubt has been injected by the recent case of People v. Harris, 45 Mich.App. 217, 206 N.W.2d 478 (1973). In that case, this court held that in misdemeanor offenses which could result in six months' imprisonment, the trial court was required to advise the defendant of his right to trial by jury and to obtain a written waiver of this right before proceeding with a bench trial. The Court in Harris took note of the fact that M.C.L.A. § 763.3, M.S.A. § 28.856 did not require a written waiver in cases cognizable by justices of the peace and that statutory references to these courts are now deemed to refer to district courts. The Court, however, failed to indicate that the offense involved, making obscene telephone calls, would not have been cognizable by a justice of the peace since the punishment authorized exceeds that over which that court could have had jurisdiction under M.C.L.A. § 774.1, M.S.A. § 28.1192. Thus the trial court in Harris committed error by failing to elicit a written waiver.

On these grounds, we distinguish Harris and hold that in trials for offenses which can result in a maximum of three months' imprisonment and/or a...