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Davis v. State2/12/2003
Howard Davis was convicted in Rockport City Court for driving while intoxicated, second offense, and for failing to dim lights. He appealed to the Hot Spring County Circuit Court and was tried without a jury. The trial judge found him not guilty of failing to dim lights but found him guilty of the DWI charge. Davis was sentenced to seven days in jail and a fine of $1,135, his driver's license was suspended for six months, and he was ordered to attend driver-safety school and AA meetings. On appeal Davis contends that the trial court deprived him of his right to a jury trial; the State concedes error. We reverse and remand for a new trial.
The following colloquy occurred at the beginning of Davis's trial in the Hot Spring County Circuit Court.
The Court: All right. Are y'all going to work on a plea agreement or are you ready to try it?
Mr. Walthall (Prosecutor): I thought we were here to try it. Am I right?
Ms. Lemons (Defense Counsel): Yeah.
The Court: Everyone who is going to testify then, raise your right hands. (All witnesses were sworn by the Court.)
The Court: Have a seat at the counsel table. Mr. Walthall, you may call your first witness.
The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to a trial by jury. The right of trial by jury is also preserved by Ark. Const. art. 2, § 10, which states that the right remains inviolate and extends to all cases at law. Article 2, section 7, of the Arkansas Constitution further directs that a jury trial may be waived by the parties in all cases in the manner prescribed by law.
A criminal defendant bears no burden of demanding a trial by jury under our constitution and law. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), quoting Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991) (holding that there was "no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue"). This assures that the jury-trial right is not forfeited by inaction on the part of a defendant, and the contemporaneous objection rule is inapplicable to this circumstance. Id. It is the trial court's burden to ensure that if there is a waiver of the right to trial by jury, the defendant waives the right in accordance with the Arkansas Rules of Criminal Procedure. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995); Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001). Although there are no jury trials in municipal court, all appeals from judgments in municipal court are de novo to circuit court in order that the right of trial by jury remains inviolate. Ark. Code Ann. § 16-17-703 (Repl. 1999).
Rule 31.1 of the Arkansas Rules of Criminal Procedure states that a defendant in a criminal case may not waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court. Additionally, Rule 31.2 specifies the following:
Waiver of trial by jury: personal request. Should a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.
Pursuant to the constitution and these two rules, a defendant is entitled to be tried by a jury without even making a motion: this holding is the common-sense reading of the constitution and the rules of criminal procedure. Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992). In Reaser v
Page 1 2 3 Arkansas DUI Attorneys
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