(dissenting).
Today this court has decided that a defendant on trial for multiple petty crimes is entitled to a trial by jury even when the court determines that it will not impose a sentence greater than ninety days, simply because the aggregate potential penalty exceeds ninety days. Yet, the United States and New Mexico Constitutions do not dictate the result reached today, our legislature has not mandated the result, and our precedent stands opposed to the result. We are faced with a choice between two noble goals: extending the guarantees of a trial by jury, and providing an efficient judicial system. The result reached by the majority, while not required by the sixth amendment and not required by due process, will seriously interfere with the efficiency of our courts and logjam our already seriously overburdened judicial system, and accordingly, I dissent.
The United States Supreme Court has not spoken directly on the constitutionality of the aggregate sentencing situation we are faced with today. See Blanton v. City of N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983), the Tenth Circuit refused to expand the definition of a serious offense constitutionally requiring the opportunity for a jury trial, and found that, in a situation where sentences could be aggregated, when none of the crimes were by definition a serious crime, the right to a jury attached only if the possible sentence actually faced by the defendant exceeded six months. Id. at 1553. The majority today, however, implicitly contends that Haar was overruled in part by the adoption of the “objective test” in Blanton. Blanton did adopt an objective test, but the majority misconstrues its significance as it applies to the case at bar.
The sixth amendment requires a defendant be afforded a jury in a trial for a serious crime. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). However, this right is not guaranteed for petty crimes, because the potential infringement of sixth amendment rights by restricting access to the jury is outweighed by expediency and the right to a speedy trial. Duncan, 391 U.S. at 160, 88 S.Ct. at 1453. The legislature, by deciding that a penalty greater than six months could be imposed has determined that, in the eyes of society, the offense is serious. See id. (“The penalty authorized by the law of the locality may be taken ‘as a gauge of its social and ethical judgments.’ ” [Citation omitted.]) When a crime is punishable by more than six months in prison, it is not the penalty per se that initiates the guarantee of a jury, but the value judgment of society implicit in the penalty. The length of the sentence is a statement that the crime is serious— and the sixth amendment guarantee of a right to a jury attaches because the trial is for a serious crime.
A jury trial is also constitutionally mandated when incarceration exceeds six months. See United States v. Potvin, 481 F.2d 380 (10th Cir.1973); see also Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (no jury required for criminal contempt where Congress has not specified a range of sentences and therefore has not categorized offense as serious; jury required only if potential sentence exceeds six months). Possible incarceration for such a long period is potentially a great infringement of an individual’s liberty interest, mandating that the sixth amendment be given effect. See Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975).
The majority has misplaced its emphasis on the quotation from Blanton, see 109 N.M. at 431, 786 P.2d at 45, that states that the legislature is the appropriate body to determine a sentence for a particular criminal act and that the judiciary should not substitute its own judgment for that of the legislature in determining whether a crime is “serious.” This view is proper when the length of a sentence is being used to determine whether a crime is serious, but it has no place in a consideration of the issue we face today.1 The constitution requires the right to a jury when the crime is serious or the actual sentence faced is serious. The legislature has already spoken on whether it considers driving while intoxicated and driving with a suspended or revoked license “serious crimes,” as that term of art is used in the case law, and it has said “no.” The only issue, then, is whether the defendant faces serious incarceration and, in this case, the trial judge has said “no.”
In addition, this view potentially abrogates separation of powers principles by infringing on the judiciary’s proper role to determine the proper sentence for an individual defendant. The trial judge has been delegated the authority to use his or her judgment to assess the circumstances of a given infraction and to determine a sentence, within the broad outlines defined by the legislature. A determination of whether a particular defendant should receive the maximum possible sentence or a lesser sentence within the range set by the legislature is an integral part of the judicial task. Sentencing is a function that involves the three bodies of our government, and each branch must be allowed to fulfill its function. To deny the role of the judiciary in setting sentences and the accompanying effect it may have on the right to a jury trial when that right turns solely on the length of possible incarceration and the defendant’s liberty interest is a serious infringement on judicial power. See Mistretta v. United States, 488 U.S. 361, -, 109 S.Ct. 647, 650-51, 666, 102 L.Ed.2d 714 (1989) (discussing the role of the judiciary in sentencing while determining the constitutionality of the United States Sentencing Commission).
Thus, what we are left with is the majority’s interpretation of NMSA 1978, Section 34-8A-5(B) (Repl.Pamp.1981) to require a jury. This interpretation contradicts this court’s precedents, and it flies in the face of principles of separation of powers and accepted principles of statutory construction.
This court has previously decided the issue presented today, and we properly recognized the conflicting interests presented by it. In Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121 (1985), we held that, when a defendant is subject to incarceration for greater than ninety days when penalties for multiple crimes are aggregated, he has a right to a jury. Id. at 441, 697 P.2d at 124 (interpreting NMSA 1978, § 34-8A-5(B) (Repl.Pamp.1981)). We also indicated that, if the judge declares on the record prior to trial that he or she will not impose a sentence greater than ninety days, the defendant has no right to a jury trial. See also State v. James, 76 N.M. 416, 420, 415 P.2d 543, 546 (1966) (“The consolidation of the petty offenses for trial does not change their nature ****”) The acceptance of the “objective test” with reference to the sentence for one crime to determine whether it is serious is irrelevant to this situation and does not affect the constitutionality of our precedent. Yet, the majority has determined that it justifies our abolishing accepted principles.
Thus, it is apparent that the majority’s decision is neither based on a constitutional requirement nor an analysis of our precedent. Furthermore, in promulgating NMSA 1978, Section 34-8A-5(B) (Repl.Pamp.1981), our legislature has acted in derogation of the common law, and thus the statute should be strictly construed. See Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982). The statute specifically refers to the right to a jury when a potential sentence exceeds ninety days in a trial for an individual offense, not the aggregate situation. The statute passes constitutional muster when given its plain meaning, and we should not expand it beyond its plain meaning and the scope obviously intended by the legislature. See Vallejos, 102 N.M. at 441-42, 697 P.2d at 124-25 (Stowers, J., dissenting).
If the guarantees of a jury were the only values at issue today, the majority’s decision would not cause any great harm. However, the guarantees of a jury must be balanced against the costs to the judicial system. In Duncan, the Supreme Court found that petty offenses were traditionally exempt from jury requirements by the common law, and stated that “possible consequences to defendants from convictions for petty crimes have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.” 391 U.S. at 160, 88 S.Ct. at 1453. This court has recently affirmed its commitment to the significance of a speedy trial, stating that our system “ ‘places the primary burden on the courts and the prosecutors to assure that cases are brought to trial.’ ” Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990) (quoting Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972)). While this court in Zurla directly placed the burden on the court system to expeditiously bring cases to trial, today it has eroded the judiciary’s ability to operate efficiently, both to the prejudice of society and defendants whose trials will be further delayed in our already overcrowded court system. I do not feel that the benefits of the protections afforded by a jury outweigh these countervailing considerations, and I anticipate disastrous results in the lower courts of this state.
. The context in which Blanton was decided should be considered as well. In Baldwin, the Court determined that the objective test was determinative of the right to a jury trial when the legislature authorized confinement for greater than six months. Blanton, on the other hand, considered the opposite question — does a sentence of less than six months automatically classify the offense as petty. While determining that it did not as a matter of constitutional law, the Court reaffirmed the significance of the legislature’s objective classification as an objective benchmark.