Bruce v. State

OPINION

HATHAWAY, Chief Judge.

The determinative issue in this appeal is whether the right to a jury trial, as provided for by Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), is applicable in those cases where the accused is charged with a number of offenses, each of which carries a potential sentence of six months or less, the combined sentence for which exceeds six months. We believe Duncan and Baldwin apply to such cases and affirm the trial court’s granting special action relief.

Appellee Bruce was arrested and charged with one count of aggravated assault as to one victim under A.R.S. Sec. 13-1204(A)(5), filed under A.R.S. Sec. 13-702(G)(2) as a class one misdemeanor, and as to a second victim, one count of assault under A.R.S. Sec. 13-1203(A)(1), also a class one misdemeanor, and one lesser included count of assault under A.R.S. Sec. 13-1203(A)(3), a class three misdemeanor, all three charges arising from the same acts. The class one misdemeanors each carry a maximum sentence of six months and the class three misdemeanor a maximum sentence of 30 days. The maximum potential sentence under A.R.S. Sec. 13-708 is therefore more than six months.

Bruce appeared in city court and requested a jury trial. The request was denied and a special action petition was filed in superi- or court. Relief was granted and this appeal followed.

Appellant first argues that each offense charged separately carries a maximum sentence of six months or less and therefore no right to a jury trial accrues to appellee. We do not agree.

Historically, the right to a jury trial has been limited to “serious” criminal charges. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Duncan v. Louisiana, supra. The United States Supreme Court has defined as “serious” any offense which carries a maximum penalty of more than six months. Baldwin v. New York, supra. In Baldwin, Mr. Justice White said:

“. . . Where the accused cannot possibly face more than six months’ imprisonment, we have held that these disadvantages [no right to a jury trial], onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications. We cannot, however, conclude that these administrative conveniences, . can similarly justify denying an accused the important right to trial by jury where *315the possible penalty exceeds six months imprisonment.” 399 U.S. at 73, 74, 90 S.Ct. at 1891 (Emphasis added).

While there was only a single offense charged in Baldwin, supra, we believe that the reasoning there is equally applicable in cases of multiple charges. In United States v. Potvin, 481 F.2d 380 (10th Cir. 1973) where the defendants were charged with two petty offenses, the aggregate penalty for which exceeded six months, the court held that the right to a jury trial did attach and Duncan, supra, and Baldwin were controlling. The Potvin court stated:

“We believe that the defendants can view as no less serious a possible penalty of a year in prison when charged with two offenses arising out of the same act, transaction, or occurrence, than if charged with one offense having a potential penalty of one year’s imprisonment.” 481 F.2d at 382.

As was stated in James v. Headley, 410 F.2d 325 (5th Cir. 1969), “If a guilty person is convicted, the sum of the potential penalties is what is important to him — and to society.” 410 F.2d at 329 (Emphasis in original).

We are aware that some jurisdictions disagree with the above reading of Duncan, Baldwin and Potvin. However, the New Mexico and District of Columbia decisions, State v. James, 76 N.M. 416, 415 P.2d 543 (1966) and Scott v. District of Columbia, 122 A.2d 579 (1956), predated the Duncan and Baldwin decisions. In City of Fort Lauderdale v. Byrd, 242 So.2d 494 (Fla.App.1970), the court held that there is no reason to consider the aggregate penalty that might be imposed if offenses are joined for trial purposes. We believe the Florida court misread Baldwin and the dicta in James v. Headley, supra. In addition, it did not have United States v. Potvin, supra, to consider. We reject the Florida approach.

We also note that the Ninth Circuit in Maita v. Whitmore, 508 F.2d 143 (1974), cert. den., 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975), rejected the holding in United States v. Potvin, supra, on the grounds that its interpretation of Baldwin was impermissibly broad in the light of Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Both Maita v. Whitmore and Taylor v. Hayes, supra, are distinguishable from Potvin and the case before us in that they involved criminal contempt where the actual sentence imposed did not exceed six months.

New Jersey in State v. Owens, 54 N.J. 153, 254 A.2d 97 (1969), cert. den., 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970), is in accord with the position we have taken here, as in Louisiana in State v. Nettleton, 367 So.2d 755 (La.1979), dealing with cumulative fines in excess of $500, and in State v. McCarroll, 337 So.2d 475 (La.1976), dealing with aggregate sentences in excess of six months’ imprisonment. Accord, United States v. FMC Corp., 428 F.Supp. 615 (W.D.N.Y.1977). It should be noted that we are dealing here, as was the court in Potvin, with multiple offenses arising from the same act or occurrence. We need not, nor do we, address the problem presented when the different offenses charged arise out of separate acts. Nor do we, in view of our holding, address the second issue raised, i. e., the moral turpitude quality of the charges.

The final issue on appeal is whether the remaining charges can be tried by the magistrate if the aggravated assault charge is tried to a jury. Permitting such bifurcation would threaten the spirit of Duncan and Baldwin. Conceivably, a defendant could receive a sentence of three months on the aggravated assault charge tried to the jury and a sentence of six months on the simple assault charge tried to the magistrate. Two-thirds of the nine months’ imprisonment would have resulted from a non-jury trial. In addition, where, as here, the same witnesses, facts and circumstances must be presented for all the charges, judicial economy is served by consolidating the charges and trying them all before the jury.

Affirmed.

RICHMOND, J., concurs.