State v. Bender

NO. 8 8 - 7 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
BRADLEY E. RENDER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven D. Nelson, Bozeman, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman, Montana
Jennifer Bordy, Deputy County Atty., Bozeman, Montana
Submitted on Briefs: June 9 , 1988
Decided: June 21, 1988
Filed: JUN 2 1 1988
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the
Eighteenth Judicial District, Gallatin County, Montana. We
vacate the District Court's judgment and remand to the
District Court for a new trial by jury.
The issue on appeal is: Does an appellant who has
waived a trial by jury in Justice Court and thereafter
appeals his conviction to the District Court have the right
to a trial by jury in the District Court?
Appellant, Bradley E. Bender was charged in Justice
Court, Gallatin County, with a misdemeanor. Appellant waived
trial by jury and was tried by the Justice of the Peace in a
bench trial. The Justice Court found the appellant guilty,
and he appealed to the District Court. Counsel for
appellant on November 6, 1987, informed the District Court
that his client requested a jury trial. The District Judge,
upon learning that there had not been a jury trial in Justice
Court, ruled that appellant was not entitled to a trial by
jury in the District Court. On January 8, 1988, immediately
prior to trial in the District Court, counsel for appellant
objected to trial without a jury. The District Court again
ruled that appellant was not entitled to a jury trial. After
a bench trial, the District Court found the appellant guilty
of the offense charged.
As counsel for respondent, the Attorney General of the
State of Montana notes that appellant made a timely request
for a jury trial in the District Court and recommends that
this case be remanded to the District Court with instructions
to afford the appellant a trial by jury unless a written
waiver is filed pursuant to S 46-16-102, MCA, which provides:
(1) Defendants in all criminal cases
shall have a right to trial by jury not
to exceed 12 in number. The parties may
agree in writing at any time before the
verdict, with the approval of the court,
that the jury shall consist of any
number less than 12.
(2 Upon written consent of the
parties, a trial by jury may be waived.
The Constitution of the State of Montana, Article 11,
Sec. 24, provides:
In all criminal prosecutions the accused
shall have the right to appear and
defend in person and by counsel; to
demand the nature and cause of the
accusation; to meet the witnesses
against him face to face; to have
process to compel the attendance of
witnesses in his behalf, - - speedy
and a
public trial 2 an impartial jury of the
county or district in which the offense
is alleged to have been committed,
subject to the right of the state to
have a change of venue for any of the
causes for which the defendant may
obtain the same. (Emphasis added.)
Section 46-17-311(1), MCA, provides:
(1) All cases on appeal from justices'
or city courts must be tried anew in the
district court and may be tried before a
jury of six selected in the same manner
as a trial jury in a civil action,
except that the total number of jurors
drawn shall be at least six plus the
total number of peremptory challenges.
See, Adair v. Lake County J u s t i c e C o u r t (Mont. 1984) ,
692 P.2d 13, 4 1 St.Rep. 2241, and C i t y o f Hardin v. Myers
(Mont. 1 9 8 1 ) , 633 P.2d 677, 38 St.Rep. 1512.
The judgment of t h e D i s t r i c t Court finding defendant
g u i l t y i s v a c a t e d and t h i s c a u s e i s remanded t o t h e D i s t r i c t
C o u r t f o r a t r i a l anew b e f o r e a j u r y .
W e concur: V