For the following reasons, I dissent.
I cannot agree with the specious reasoning of the majority opinion which in effect nullifies an unambiguous, specific statutory provision. All statutory references are to U.C.A., 1953.
76-1-402(2), provides:
Whenever conduct may establish separate offenses under a single criminal episode, unless the court otherwise orders to promote justice, a defendant shall not be subject to separate trials for multiple offenses when:
(a) The offenses are within the jurisdiction of a single court, . . . . [Emphasis supplied.]
The offenses were within the jurisdiction of a single court — the district court.
Article VIII, Sec. 7, Constitution of Utah, provides: *Page 695
The District Court shall have original jurisdiction in all matters civil and criminal, not excepted in this Constitution, and not prohibited by law; . . .1
There is no constitutional or statutory provision which deprives the district court of jurisdiction to try the Class B misdemeanors with which defendant was charged.2
The majority opinion indulges in judicial gerrymandering in contradiction of the terms of the statute. The test under subsection (2)(a) should be, is there a court which has jurisdiction of all the offenses charged arising out of a single criminal episode? The prosecution cannot avoid the proscription of subsection (2) by proceeding before a court of limited jurisdiction, when there is, in fact, a single court which has jurisdiction (the power) to try all the offenses charged.
To attain the result desired in the majority opinion it is necessary to construe Sec. 77-16-1 as a specific denial by the legislature of jurisdiction to the district court to try misdemeanor charges triable in inferior courts. The effect of this interpretation is to deny by indirection the jurisdiction specifically conferred by statute and the constitution on the district courts. It is perplexing that the legislature, if it desired to deny the district court jurisdiction in such cases, did not express itself in the same clear manner that it did in Sec. 78-5-5, U.C.A., 1953, wherein it conferred exclusive, original jurisdiction on city and town justices of the peace in certain cases.3
The interpretation by the majority of Sec. 77-16-1, is tantamount to judicial legislation whereby this Court has decreed that the inferior courts have exclusive, original jurisdiction of all public offenses of a lesser degree than a Class A misdemeanor. I cannot glean any legislative intent to confer or deny jurisdiction within the Code of Criminal Procedure; rather matters concerning jurisdiction of the courts of this state are clearly set forth in Title 78, Chapters 1 through 6.
Section 77-16-1 should be construed in connection with Section77-1-4, which provides:
Every public offense must be prosecuted by information . . . except:
* * * * * *
(3) Offenses triable in city, justices' and police courts.
These two statutes merely confirm the classification of offenses into two categories, but the jurisdiction of the courts must be found elsewhere in the code.
77-16-1 is a reaffirmation of Sec. 77-1-4, that every public offense must be prosecuted by information unless it is of the less serious type which might be tried in an inferior court. These two statutes merely refer to the jurisdiction of the respective courts and the appropriate procedure depending on the classification of the offense. They do not in any way confer or limit the jurisdiction of any court.
In State v. Johnson4 the majority opinion suggested that the two foregoing statutes constituted a certain procedure laid down by the legislature for invoking the jurisdiction of the district court. The rationale was that although a tribunal may have jurisdiction of the subject matter, the right to proceed under that jurisdiction may depend on a condition precedent, viz., the jurisdiction must be invoked according to a certain procedure. The court expressed the view that in the case of misdemeanors, the jurisdiction of the district court could be invoked in two ways only: First, by appeal; second, if it appeared by certificate that there was no justice of the peace qualified *Page 696 to try the case. However, the majority opinion explained that it was a matter of venue, viz., the proper venue for the commencement of an action for a non-indictable misdemeanor had been laid in the justices' court or the city court. This Court stated:
. . . The matters presented did not go to the jurisdiction but only venue. The court being one of general jurisdiction had jurisdiction of the subject matter of misdemeanors, . . . not having raised the question of venue, defendant waived it. . . .5
In a concurring opinion, Justice Pratt stated:
. . . But the writer is of the opinion that section 105-16-1 [Sec. 77-16-1] was not passed with the thought of excluding misdemeanors from the District Court. It was passed merely as an effort to make uniform the procedure as to felonies and indictable misdemeanors, which the legislature contemplated would be the bulk of the trials before the District Court. It is a section enacted to conform to Section 105-1-4 [Sec. 77-1-4] and to Section 13 of Article I of the Constitution, both of which deal with felonies and indictable misdemeanors but not with misdemeanors.6
Section 76-1-402(2) confers a valuable right on one charged with multiple offenses under a single criminal episode — he is not compelled to face the emotional trauma and expense of several trials, if his circumstances fall within the qualifying terms. Even under the reasoning of the majority opinion in State v.Johnson, the jurisdiction of the district court could be invoked, for the justice of the peace would not have jurisdiction (would not be qualified) to try all the offenses charged. Furthermore, Sec. 76-1-402(2), is a later enactment, conferring a substantive right, and it should be held, if it be necessary, to modify an earlier, procedural enactment.
State v. Johnson, clearly concedes, the district court had jurisdiction to try a misdemeanor.7 76-1-402(2)(a) requires only that the offenses be within the jurisdiction of a single court; there are no further qualifications in this regard. Defendant's circumstances met the qualifications of the statute.
The trial court should be affirmed.