(dissenting).
I would adhere to our decision in State v. Wikle, 291 N.W.2d 792 (S.D.1980), and would hold that the magistrate erred in denying defendant’s request for a jury trial.
As has been pointed out, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), does not hold that offenses which carry a maximum punishment of six months or less are automatically petty offenses. See United States v. Stewart, 568 F.2d 501 (6th Cir.1978); United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir.1976). As the Court was careful to say:
In this case, we decide only that a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of “petty.” None of our decisions involving this issue have ever held such an offense “petty.”
Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888, 26 L.Ed.2d at 440, n. 6.
Although I do not for a moment believe that our magistrates and circuit court judges have attempted, in this case or in any other like case, to cudgel our citizens into surrendering their constitutional rights, I believe that it is for the legislature to make the initial decision, subject to ultimate judicial review, whether the social opprobrium attached to a conviction of a Class 2 misdemeanor has been so attenuated by changing public attitudes that a jail sentence, and perforce the commensurate safeguard of a jury trial, is no longer warranted. Even if we could agree that because jail sentences are in practice no longer imposed for speeding violations the social opprobrium attached to a conviction of speeding is so minuscule as to render the offense petty, would we, or could we, say the same regarding convictions for second degree petty theft (SDCL 22-30A-17), indecent exposure (SDCL 22-24-1), or gambling (SDCL 22-25-1)? These too are Class 2 misdemeanors, but it is doubtful whether they are petty offenses within the meaning of Wikle.
Moreover, even if the majority opinion were limited to speeding cases, leaving for another day the determination regarding other Class 2 misdemeanors, I would be loath to make a defendant’s right to a jury trial dependent upon the ad hoc determination of a magistrate or judge. As the Supreme Court of Louisiana has held,
[A] defendant may not be deprived of his right to a jury trial through the expedient of a trial judge’s guarantee of a sentence of six months or less in the event of conviction. State v. Grimble, 397 So.2d 1254 (La.1981). The legislative determination of a case’s seriousness entitles an accused to a jury trial, not the possibly arbitrary decision of a trial court.
State v. Jones, 396 So.2d 1272, 1274 (La.1981). Likewise, the Court of Appeals for the Ninth Circuit has stated: “The Supreme Court has repeatedly asserted that the right to a jury trial should depend not upon the predelictions of the particular judge, but upon application of objective standards reflected in the law and practices *239of the community ...." United States v. Hamdan, 552 F.2d 276, 279 (9th Cir.1977).
In sum, then, rather than to make a blanket pronouncement that all Class 2 misdemeanors are petty offenses or to engage in a case by case analysis of what constitutes a petty offense, I would leave it to the legislature to determine whether certain Class 2 misdemeanors are no longer deserving of carrying a penalty of a possible jail sentence. Once that legislative determination has been made, then pursuant to Wikle no jury trial need be afforded.