Fairbanks v. State

Lowe, J., delivered the opinion of the Court. On July 18, 1978, John Franklin Fairbanks, the appellant, ¹⁶ was convicted by Judge William Buchanan in the Circuit Court for Baltimore County, of robbery with a dangerous and deadly weapon and of the use of a handgun in the commission of a crime. On August 16, 1978, he was sentenced to twenty years of, imprisonment for the robbery, and to a concurrent five year sentence for the handgun offense. The sole issue raised on appeal is whether the court properly accepted appellant’s waiver of a jury trial pursuant to Md. Rule 735.

Appellant raised no objection below to the waiver of trial by jury. In fact, his attorney volunteered that: “Mr. Fairbanks understands what a jury trial is. He understands he has the absolute right to have a jury trial and wishes to waive that right and be tried by the Court here today. Is that correct, Mr. Fairbanks?”, to which appellant replied: “Yes, sir, it is.” Appellant relies on Biddle v. State, 40 Md. App. 399 (1978), to argue that the record must show clear compliance with Md. Rule 735, and that an on the record inquiry of appellant was required of the court to ascertain if his waiver was knowingly and voluntarily made with full knowledge of his right to a jury trial.

Md. Rule 735, interpreted by Biddle , has been altered by amendment. 5 Md. Reg. 1788 -1789 (1978). To underscore the changes in Rule 735 since Biddle , we will set forth the rule as amended, bracketing in bold face (double brackets) that which was deleted and italicizing (by underlining) that which was added. Consideration of this amended version is necessary because the Court of Appeals has directed that the rule change be applied to “all proceedings commenced on and after January 1, 1979, and insofar as practicable, to all proceedings then pendingId. at 1788 (emphasis added). We see nothing to indicate the impracticability of applying the amended version.

Rule 735 reads: “a. How Made — Time. ¹⁷ Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 [[(Pleas)]]. If the defendant elects to be tried by the court, the State may not elect a jury trial. [[After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown.

In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.]] b. Form of Election. An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form: (caption of the case) Election of Court Trial or Jury Trial I know that I have a right to be tried by a jury of 12 persons or by the court without a jury.

I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt. I hereby elect to be tried by:............. (insert ‘the court’ or ‘a jury’) I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election.

Witness: Signature of Counsel Signature of Defendant Date:............. ¹⁸ c. When No Election Filed. If the election is not filed within the time provided by this Rule, the court, on