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Byrd v. Stavely5/5/2005
s that may not be known by the court at the time of the defendant's arraignment, it would be illogical to interpret §§ 16-10-109(2) and 42-4-1301 as requiring only first-time DWAI offenders to request and pay for a jury trial.
When a defendant is charged with a petty offense and is not represented by counsel at the arraignment, the court is required to advise the defendant of the right to a jury trial and the requirements for obtaining one. Section 16-10-109(3), C.R.S. 2004, sets forth the advisement requirements for a defendant's arraignment for any petty offense, as defined by § 16-10-109(1), C.R.S. 2004. It provides in relevant part:
At the time of arraignment for any petty offense in this state, the judge shall advise any defendant not represented by counsel of the defendant's right to trial by jury, of the requirement that the defendant, if he desires to invoke his right to trial by jury, demand such trial by jury in writing within ten days after arraignment . . . and of the requirement that the defendant . . . tender to the court within ten days after arraignment . . . a jury fee of twenty-five dollars . . . .
Section 16-10-109(3) assumes that the judge giving the advisement is aware of which offenses are petty and which are serious for the purposes of obtaining a jury trial. However, as demonstrated by our above analysis, that distinction is not always straightforward.
For example, Byrd and Claudell, who were not represented by counsel when they were arraigned, were each given the identical general advisement. The county courts' advisement provided:
Your rights with respect to your case are as follows: You have the right to plead not guilty and have a trial to the court or a jury trial. Some of you are charged with minor offenses and you'll have to make a written request for a jury trial, pay a jury fee, and do both of those things within 10 days f today's date in order to have a jury trial.
However, it did not specify what offenses were "minor" or petty and thus required a written jury trial request and payment of a fee.
These practical difficulties reinforce our conclusion that the General Assembly intended that all defendants charged with an offense under § 42-4-1301 are entitled to a jury trial without having to comply with the requirements in § 16-10-109(2). We believe that this construction gives effect to all parts of the statute and eliminates uncertainty at arraignments in advising defendants who are charged with different offenses with disparate potential penalties under § 42-4-1301.
Consequently, we conclude that none of the offenses listed in § 42-4-1301 is considered petty for the purposes of § 16-10-109, and therefore, defendants are not required to comport with that section to obtain a trial by jury.
The judgment of the district court is affirmed.
CHIEF JUDGE DAVIDSON and JUDGE NEY concur.
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