dissenting:
I dissent. I believe that the majority errs in its manner of addressing the merits of defendant’s contention that he was denied his right to a trial by jury. Furthermore, and more fundamentally, I believe that the trial court erred in ruling that defendant had no right to a jury trial. In light of that erroneous ruling, I am of the opinion that his plea was not voluntarily and intelligently made. I would vacate the plea.
Defendant was charged by information with possession of marijuana, a class 6 felony. At the time set for trial, the judge, in chambers, stated:
At this time the Court will advise counsel and the defendant that the Court has reviewed the file in this case and finds that if the defendant were to be convicted of the offense with which he is charged, the Court would designate it as a misdemeanor and would give him a sentence of less than six months in the county jail, and, therefore, the defendant is not entitled to a jury trial.1
Thereafter (the transcript does not indicate how long a time elapsed), defendant, in open court, entered a guilty plea with a stipulated sentence of one day (time served) and a $63.50 fine. Defendant waived the preparation of a presentence report and was sentenced. Two days later he filed a notice of appeal.
In my opinion, the trial judge was clearly mistaken in ruling that the defendant was not entitled to a jury trial, and the state seems to concede this on appeal. But since a reviewing court is not bound by the state’s confession of error, I shall proceed to set forth the bases for my opinion that the ruling was erroneous.
It is the possible sentence, not the actual sentence ultimately imposed, which is determinative of a right to a jury trial. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 618 P.2d 1078 (1980).2 The offense charged was a class 6 felony, with a maximum penalty of IV2 years’ imprisonment (A.R.S. § 13-*203701(BX5)), and a fine of $150,000 (A.R.S. § 13-801(A)). That is not a “petty offense” by any standard. The offense pled to was a class 1 misdemeanor, with a maximum penalty of six months’ imprisonment (A.R.S. § 13-707(1)), and a fine of $1,000 (A.R.S. § 13-802(A)). Even that is not a “petty offense” under the standard oí Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138 (1975), and State ex rel. Baumert v. Superior Court, supra. The present criminal code defines “petty offense” as one for which only a fine is authorized, A.R.S. § 13-105(22), and the terms “misdemeanor” (or “felony”) and “petty offense” are mutually exclusive. A.R.S. § 13-602(C). While these statutory definitions are not controlling on the issue of right to jury trial, State ex rel. Baumert v. Superior Court, supra, I believe that the legislative determination of what is “petty” and what is not deserves some consideration in the judicial determination of what is “petty” and what is not for purposes of right to jury trial. Cf. State v. deWood, 11 Ariz.App. 290, 464 P.2d 361 (1970), where the trial judge clearly informed a defendant charged with a violation of A.R.S. § 36-1002.05 of his right to a jury trial, and the defendant affirmatively waived that right.
The court’s error in stating to defendant that he was not entitled to a jury trial was not, in my opinion, cured by the subsequent plea proceeding. The plea agreement was apparently prepared in advance, and all but signed, but it was clearly induced by the ruling on the jury trial issue. On the face of the plea agreement, someone crossed out “to jury” in the recitation of rights waived. The judge, apparently reading from an unaltered plea form, orally advised defendant that he was waiving his right to “a trial by jury”. I do not believe this negates the effect of the prior explicit ruling to the contrary. Even after the plea was accepted and immediately prior to sentencing, defendant stated that he thought he was going to get a jury trial.
THE COURT: Mr. Moreno, are you satisfied with the legal services you’ve received in this case with your attorney?
THE DEFENDANT: Well, no. I thought I would probably get a jury.
THE COURT: Well, that really doesn’t have anything to do with your attorney. That was the Court’s decision.
I concede that a valid guilty plea waives non-jurisdictional defects, including deprivations of constitutional rights, which occurred prior to, and independent of, the plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973). But that is not the issue here. Appellee has confused the issues in the answering brief, and appellant filed no reply brief to clarify them. The issue is simply whether the plea was intelligently made.
I concede also that a valid guilty plea waives the right to a jury trial. State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971). But even Laurino, decided before the adoption of Rule 17, stated that the issue was “whether the plea was voluntarily and intelligently made.” Id. at 586, 480 P.2d 342. In this case, it was not. The right to a jury trial is one of the three basic constitutional rights of which a defendant must be informed. State v. Schoonover, 128 Ariz. 411, 626 P.2d 141 (App.1981). “[T]he right to a jury trial may be waived, where an accused is aware of the right and voluntarily and intelligently relinquishes it.” State v. Jelks, 105 Ariz. 175, 177, 461 P.2d 473, 475 (1969), cert. denied 398 U.S. 966, 90 S.Ct. 2179, 26 L.Ed.2d 549 (1970) (emphasis supplied). The extent to which the trial judge discussed the matter of waiver of jury trial is one circumstance to be considered in determining whether the alleged waiver was valid. State v. Little, 104 Ariz. 479, 455 P.2d 453 (1969). In State v. Tiznado, 112 Ariz. 156, 540 P.2d 122 (1975), the court noted that the trial court had discussed “at length” with the defendant his right to a jury trial. Here, the record, short as it is, clearly shows that the defendant was misinformed. I find it incomprehensible that the majority can hold that this defendant voluntarily, knowingly, and intelligently waived a fundamental right which the trial judge had just told him he did not have in the first place.
*204For a model of the proper handling of an intelligent plea issue such as that presented here, see State v. Esquer, 26 Ariz.App. 124, 546 P.2d 849, reh. denied 26 Ariz.App. 572, 550 P.2d 240 (1976). There the trial judge informed the defendant of his right to a “public and speedy trial” but not his right to a “jury trial”; Id. 26 Ariz.App. at 125, 546 P.2d 849. This court held that did not satisfy the requirements of Rule 17.2(c) and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and reversed. There was no mention of “waiving non-jurisdictional defects.” That concept is irrelevant when the defect is in the plea itself.
See also Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980). There the defendant was informed at a group arraignment that he had a right to a jury trial if he could be sentenced to jail for his offense (DWI). At another, individual, arraignment, he was told that he could receive a jail term. He then pled guilty. The court held that he had not been informed of his right to a jury trial in compliance with Alaska Rule 11 (based on Federal Rule 11) and that he had to be allowed to vacate his guilty plea. Again, there was no mention of “waiving non-jurisdictional defects.”
After further consideration of the majority opinion, I am compelled to further comment, even though my comments may be considered repetitious. The offense charged was a class 6 felony which carries a maximum penalty of IV2 years upon conviction. Clearly, in my opinion, defendant had a right to a jury trial on such offense. However, this right was erroneously taken from defendant by the trial court’s clear and unambiguous ruling that if the defendant were convicted, the court would designate the offense as a misdemeanor “... and therefore defendant is not entitled to a jury trial.” The majority states that there is nothing in the provisions of A.R.S. § 13-702(G) which would preclude a trial judge from so doing. I disagree for the basic reason that I believe such authority can only be exercised “... if a person is convicted of any class 6 felony. ...” (emphasis supplied). To me this is synonymous with after conviction. The realistic resultant effect is that this defendant who had never been arrested or charged with any offense in this jurisdiction 3 was deprived of the opportunity to have his guilt or innocence determined by a jury.
I further believe that the trial judge’s erroneous ruling induced the defendant to enter into the plea agreement and, accordingly, the plea was not voluntarily and intelligently made. After being unalterably told that he had no right to a jury trial, it would appear that defendant’s better course of action would be to get the best “deal” possible by entering into a plea agreement. But the fact remains that the plea agreement was the by-product of the trial court’s erroneous ruling and was not intelligently made.
Furthermore, when the plea is not intelligently made, the fact that there was no objection below is also irrelevant. When the court fails to inform the defendant of the rights he waives by his plea, that is fundamental error. Here the situation is more pronounced since the court, in the first instance, misinformed the defendant of his rights. Decisions vacating unintelligent pleas do not even mention objections. See, e.g., Esquer, supra.
Finally, there is no reason to remand for a hearing as to whether defendant was aware of his rights. See Esquer, supra; cf. State v. Reuben, 126 Ariz. 108, 612 P.2d 1071 (App.1980). He was not. The plea agreement should be set aside.
. Pursuant to A.R.S. § 13-702(G) the court may enter judgment of conviction for a class 1 misdemeanor of a person who has been convicted of a class 6 felony. However, it is clear that defendant had not been convicted of a class 6 felony when the trial judge made this statement. Additionally, at that time the appellee had not designated the offense as a misdemeanor, nor was there any discussion with respect to any amendment of the information then before the court.
. To the extent that Bruce v. State, 126 Ariz. 271, 614 P.2d 813 (1980), implies otherwise, I find it distinguishable. In my opinion, the reasoning of Bruce is confined to the problem of possible consecutive sentences for offenses each of which is “petty”. If the offense charged is not “petty” to begin with, then Bruce has no applicability. This is made clear by State ex rel. Baumert v. Superior Court, supra (decided after Bruce) in which the entire focus was on the possible sentence, not the actual sentence. 127 Ariz. at 153, 618 P.2d at 1079.
. The record contains written certifications from the City of Phoenix Police Department and the Maricopa County Sheriffs Office that there was no record of defendant having been arrested or charged with any offense in this jurisdiction.