Peoplev.Bates

Michigan Court of AppealsMar 6, 1989
175 Mich. App. 490 (Mich. Ct. App. 1989)
175 Mich. App. 490438 N.W.2d 298

Docket No. 110637.

Decided March 6, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

Stuart L. Young, for defendant.

Before: MICHAEL J. KELLY, P.J., and GRIBBS and V.L. WASHINGTON, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


MICHAEL J. KELLY, P.J.

The Oakland County Prosecutor appeals by leave granted from a circuit court decision permitting defendant Kimberly E. Bates to waive her right to a jury trial over the objection of the prosecutor. The lower court concluded that the amended version of MCL 763.3; MSA 28.856, which requires the prosecutor's consent in order to waive a jury trial, does not apply to charges based upon criminal activity which occurred prior to June 1, 1988, the effective date of the statute. We reverse.

Defendant is charged with embezzlement over $100, MCL 750.174; MSA 28.371. The charge alleges that the embezzlement occurred in December of 1987. Defendant sought to waive her right to trial by jury on June 28, 1988. The prosecutor opposed this waiver, asserting that defendant could not waive a jury trial without the prosecution's consent pursuant to 1988 PA 89, MCL 763.3; MSA 28.856, as amended. This amended version of the statute provides:

In all criminal cases arising in the courts of this state the defendant may with the consent of the prosecutor and approval by the court, waive a determination of the facts by a jury and elect to be tried before the court without a jury. [MCL 763.3; MSA 28.856. Emphasis added.]

Section 2 of 1988 PA 89 provides: "This amendatory act shall take effect June 1, 1988. This act is ordered to take immediate effect."

The circuit court concluded that these statutory provisions should not be applied to charges filed prior to June 1, 1988, and granted defendant's request for a waiver of a jury trial. The circuit judge reasoned that the retroactive application of Act 89 was improper because

previously she had the right at the time the crime was committed and it shouldn't — the time that ensues should not affect the effective date of when it's effective, and the court's of the opinion it should be effective as of the date of the enactment and any crimes committed thereafter, it's a constitutional statute. But it obviously can't be given retroactive effect.

On appeal, the people argue that the trial court erred by determining that the amended version of MCL 763.3; MSA 28.856 did not apply to defendant's jury waiver. We agree and reverse the circuit court's grant of defendant's jury waiver.

A statute is generally presumed to operate prospectively unless the contrary intent is expressly or impliedly shown by the Legislature. Selk v Detroit Plastic Products, 419 Mich. 1, 9; 345 N.W.2d 184 (1984). An exception to this general rule is recognized where a statute is remedial or procedural in nature. Franks v White Pine Copper Div, 422 Mich. 636, 672; 375 N.W.2d 715 (1985); Selk, supra, p 10. Statutes which operate in furtherance of a mode of procedure and which do not create new rights nor destroy, enlarge, or diminish existing rights are generally held to operate retroactively unless a contrary legislative intent is shown. Franks, supra, p 672; Hansen-Snyder Co v General Motors Corp, 371 Mich. 480, 485; 124 N.W.2d 286 (1963).

There is no indication of a legislative intent that 1988 PA 89 be given only prospective effect. The amendments in Act 89 operate purely in furtherance of a mode of procedure and, therefore, should be given full retroactive effect under Franks.

The amended version of MCL 763.3; MSA 28.856 neither creates new rights nor enlarges, diminishes, or destroys defendant's existing rights. There is no absolute or constitutional right to waive a jury trial in order to proceed with a bench trial. Singer v United States, 380 U.S. 24; 85 S Ct 783; 13 L Ed 2d 630 (1965). People v Henderson, 246 Mich. 481, 483-485; 224 N.W. 628 (1929); People v Piffer, 40 Mich. App. 419, 421; 198 N.W.2d 883 (1972). See also Detroit Free Press v Recorder's Court Judge, 409 Mich. 364, 377, n 4; 294 N.W.2d 827 (1980). Any right to a trial without a jury depends solely upon statutory authority permitting such a waiver, and does not exist in the absence of such authority. Henderson, supra; Piffer, supra. Grant of a bench trial to an accused may be conditioned upon the consent of the judge and the prosecutor. Singer, supra; Detroit Free Press, supra.

Since there is no vested or substantive right to a bench trial, it cannot be said that the Act 89 amendments have taken away any such rights. Defendant sought to take advantage of the jury waiver authorized by MCL 763.3; MSA 28.856, so she was required to accept the statutory procedural conditions which attend that right.

We also note that this is not truly a question of retroactive application of Act 89, as the amendments were in effect prior to defendant's request for a jury waiver. "[W]hen a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending and future actions." Hansen-Snyder, supra, p 485. Defendant had two months, from March 30 to June 1, 1988, in which to unilaterally waive her jury trial, yet failed to do so prior to the effective date of 1988 PA 89. Defendant had no statutory right to unilaterally waive a jury trial after the effective date of the statute. The circuit judge erred in holding that Act 89 could not be applied to defendant's case.

Reversed.