People v. Bell , 53 Mich. App. 161 ( 1974 )

53 Mich. App. 161 (1974) 218 N.W.2d 873

PEOPLE
v.
BELL

Docket No. 17127.

Michigan Court of Appeals.

Decided May 1, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

Meyer R. Rubin, for defendant.

Before: DANHOF, P.J., and QUINN and V.J. BRENNAN, JJ.

QUINN, J.

On leave granted, defendant appeals from the denial of his motion for a jury trial. On January 16, 1973, defendant was arrested and arraigned in Detroit Recorder's Court Traffic and Ordinance Division on a charge of operating a motor vehicle under the influence of liquor, MCLA 257.625; MSA 9.2325. Defendant was not represented by counsel at arraignment. The motion for jury trial was made on April 5, 1973, the trial date, at which time defendant was represented by counsel.

On the basis of Detroit Recorder's Court Traffic and Ordinance Rule 14, the trial judge denied the motion for jury trial. In pertinent part, rule 14 reads:

"Requests for a trial by jury on all such misdemeanors and ordinance cases shall be made in writing at the time of the arraignment on the complaint and warrant if the defendant is represented by an attorney of record. If the defendant appears without counsel, request for a jury trial must be made within ten days after the arraignment on the complaint and warrant. In the event that no such request is made within the time herein provided, such inaction will constitute a waiver of a trial by jury and the case shall be scheduled for trial on the nonjury misdemeanor docket."

Defendant attacks the constitutionality of rule 14.

Const 1963, art 1, § 20, provides in part:

"In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, * * *."

MCLA 763.3; MSA 28.856 sets forth the methods for waiving a jury trial and the method of waiver set forth in rule 14 is not included. The constitutional and substantive right of a defendant to a trial by jury cannot be diminished by a local court rule waiver provision that enlarges the statutory method of waiver.

Reversed and remanded for trial before a jury.

All concurred.