STATE v. WICKE, 19 Wn. App. 206 (1978)

574 P.2d 407

THE STATE OF WASHINGTON, Respondent, v. ERNEST GEORGE WICKE, Appellant.

No. 2019-3.The Court of Appeals of Washington, Division Three.
February 2, 1978.

[1] Criminal Law — Jury — Right to Trial by Jury — Waiver —Procedure. The right of every criminal defendant, including one appealing from a district or justice court proceeding, to a trial by jury under CrR 6.1(a) may be waived by him only in writing. Neither a recital of waiver by his counsel or the court, nor entry of formal findings, is an acceptable substitute for his written waiver.

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The jury waiver provisions of RCW 10.01.060 merely prohibit a defendant charged with a capital offense from waiving his right to a jury trial.

[2] Criminal Law — Jury — Right to Trial by Jury — Waiver — Incarceration. A prosecution which may result in incarceration is a case required to be tried by jury for purposes of CrR 6.1(a), which requires a jury trial to be waived by the defendant’s written request in any case where a jury is otherwise required.

Nature of Action: Following his district court conviction for driving while intoxicated, the defendant appealed to the superior court.

Superior Court: Following an oral waiver of a jury trial by the defendant’s counsel, the Superior Court for Spokane County, No. 24346, William H. Williams, J., on June 21, 1976, entered a judgment of guilty.

Court of Appeals: Holding that the right to a jury trial was improperly waived and that the provisions of CrR 6.1(a) were the only means of waiving such a right, the court reverses the judgment.

Richard L. Cease, Public Defender, and Richard F. Ayres, Jr., Assistant, for appellant.

Donald C. Brockett, Prosecuting Attorney, and Vernon W. Harkins, Deputy, for respondent.

McINTURFF, J.

Ernest G. Wicke appeals his conviction for driving while intoxicated. The sole issue presented by this appeal is whether CrR 6.1(a) requires a written waiver of a jury in a superior court trial de novo where the defendant was originally charged by a complaint in district court.

Ernest Wicke was charged by complaint in Spokane District Court with driving while under the influence of intoxicating liquor or drugs (hereafter DWI). He was found guilty and sentenced to 90 days in jail. An appeal was taken, and after a trial de novo, he was convicted. The waiver of jury

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was not in writing, but was by oral stipulation of his counsel. Although Mr. Wicke was present, the judge did not ascertain from him whether he waived his right to a jury.

[1] CrR 6.1(a) provides: “Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.” Neither a recital of waiver by the court or counsel, nor entry of formal findings will substitute for the written waiver required by the above rule State v. Jones, 17 Wn. App. 261, 562 P.2d 283 (1977). The prosecutor contends, however, that CrR 6.1(a) is inapplicable here because this case was not “required to be tried by jury”. The prosecutor relies on RCW 10.01.060 which provides:

No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided however, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.

On the basis of this statute, the prosecutor contends the written waiver requirements of CrR 6.1(a) are inapplicable because that rule only applies to cases brought by indictment or information indicating an original exercise of superior court jurisdiction. We do not accept the prosecutor’s contentions.

CrR 6.1(a) establishes a general right to trial by jury. State v. Jones, supra; Criminal Rules Task Force to the Washington Judicial Council, Washington Proposed Rules of Criminal Procedure (1971), comment to rule 6.1. On the other hand, RCW 10.01.060 is a narrowly drawn statute prohibiting jury waiver only in capital cases. State v. Jones, supra at 264. On appeal from district court to superior court, trial is de novo. See State v. Miller, 59 Wn.2d 27, 365 P.2d 612 (1961). The proceedings in the superior court are then as if originally commenced there. Seattle v. Crockett, 87 Wn.2d 253, 256, 551 P.2d 740 (1976); State v. Buckman,

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51 Wn.2d 827, 322 P.2d 881 (1958). Accordingly, a person tried de novo in superior court on appeal from a district court conviction has a right to a jury trial. See Bellingham v. Hite, 37 Wn.2d 652, 225 P.2d 895 (1950). In Hite the court held the right to trial by jury in a prosecution for DWI was not denied by a statute giving a police judge jurisdiction to try the case without a jury because any person convicted was entitled to appeal to the superior court for a trial de novo where there was a right to trial by jury.[1]
[2] In addition, since under RCW 46.61.515 DWI is punishable by up to 1 year in jail, a defendant is entitled to a trial by jury under the Fourteenth Amendment. Baldwin v. New York, 399 U.S. 66, 26 L.Ed.2d 437, 90 S.Ct. 1886 (1970). Therefore, a prosecution for DWI is a “case required to be tried by jury” within the meaning of CrR 6.1(a), and under State v. Jones, supra, a waiver of jury trial must be in writing to be effective.

Judgment of the Superior Court is reversed and this case is remanded for new trial.

MUNSON, C.J., and GREEN, J., concur.

Petition for rehearing denied February 27, 1978.

Review granted by Supreme Court July 21, 1978.

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