Summary
In Stauffer, this court, three members dissenting, strictly applied Crim. R. 23(A) and denied a jury trial to a defendant whose jury demand was not timely filed with respect to the originally scheduled trial date despite the fact that the demand was made twenty days before the actual trial date.
Summary of this case from Tallmadge v. Degraft-BineyOpinion
No. 76-1
Decided November 10, 1976.
Criminal law — Petty offense — Demand for jury trial — Not timely made, when — Crim. R. 23(A), construed.
APPEAL from the Court of Appeals for Athens County.
Appellant, Philip M. Stauffer, was arrested on October 4, 1974, on a charge of operating a motor vehicle while intoxicated, in violation of R.C. 4511.19. At his arraignment on October 7, 1974, he entered a plea of not guilty, and requested the appointment of counsel on the ground of indigency. At that time appellant's case was set for trial beginning October 17, 1974, and appellant was informed in writing that his right to a trial by jury depended upon his making a demand therefor, that the demand had to be written and that it had to be made within three days after receipt of notice of the date set for trial, or not less than ten days prior to the date set for trial. There was no evidence in the record that appellant did not comprehend this written warning.
Counsel for appellant was appointed on October 9, 1974, and was advised by the court of his appointment on the next day. A written request for a jury trial was filed by counsel for appellant on October 11, 1974, but was denied by the trial court on the ground that the request had not been timely made, i.e., within ten days prior to the date set for trial, or within three days of receipt of notice of the date set for trial, whichever is later, as provided for in Crim. R. 23.
Counsel for appellant objected on the grounds that notification of the appointment of counsel was not made until October 10, 1974. The trial court ruled that the language of Crim. R. 23 is mandatory, and that the court therefore could not grant the jury trial request.
An appeal was taken to the Court of Appeals, and the judgment of the trial court was affirmed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Richard P. Taylor, city prosecutor, for appellee.
Mr. Thomas L. Cornn, for appellant.
Crim R. 23(A) provides, in relevant part:
"In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto."
Appellant was charged with a violation of R.C. 4511.19. Under Crim. R. 2, this is a petty offense; it is a first degree misdemeanor carrying the potential penalty of a $1,000 fine and imprisonment for six months under R.C. 2929.21. In such a case, a jury trial demand made pursuant to Crim. R. 23(A) must be made in writing not less than ten days prior to the date set for trial, or on or before the third day after receipt of notice of the date set for trial, whichever is later.
On the facts of the instant case, appellant was aware of the jury demand rule and his counsel enjoyed one day in which to file the demand under Crim. R. 23(A). The case at bar does not present the dilemma which would be faced by counsel who is not appointed until after the deadline set forth in Crim. R. 23(A), nor by a defendant whose background rendered him unable to comprehend the written information supplied him regarding his right to a jury trial.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, STILLMAN and CELEBREZZE, JJ., concur.
CORRIGAN, W. BROWN and P. BROWN, JJ., dissent.
STILLMAN, J., of the Eighth Appellate District, sitting for STERN, J.
The requirement of Crim. R. 23 is that the jury demand "must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later."
Both the reason for the demand requirement and the basic importance of the right of trial by jury in our system compel a conclusion that the "date set for trial," as used in the rule, means three days before the date set for the actual trial without regard to the number of continuances granted or the reasons therefor.
This conclusion makes it unnecessary to consider the effect which the date of appointment of counsel might have on the deadline in the rule.
CORRIGAN and W. BROWN, JJ., concur in the foregoing dissenting opinion.