Kleberg v. State

ELDRIDGE, Judge. The issue presented by the petition for a writ of certiorari concerns a defendant’s right to a circuit court jury trial on a de novo appeal from a District Court judgment in a criminal case. Dana Marcellus Kleberg was charged with both driving while intoxicated and driving while under the influence of alcohol in violation of Maryland Code (1977, 1987 Repl.Vol.), § 21-902 of the Transportation Article. Driving while intoxicated is prohibited by § 21-902(a) of the Transportation Article, and, under § 27-101(k) of that Article, is subject to a maximum penalty for a first offense of one year imprison ⁴¹³ ment or a fine of not more than $1,000 or both.

Driving while under the influence of alcohol is a lesser included offense of driving while intoxicated, is prohibited by § 21-902(b) of the Transportation Article, and, under § 27-101(c), is subject to a maximum penalty of two months imprisonment or a fine of not more than $500 or both. See Fisher v. State, 305 Md. 357 , 504 A.2d 626 (1986). See also the discussion of these statutes in Nast v. Lockett, 312 Md. 343, 352-355 , 539 A.2d 1113 (1988). The charges against Kleberg came on for trial in the District Court of Maryland, sitting in Montgomery County, on June 2, 1989.

In light of the seriousness of the driving while intoxicated charge, Kleberg could have elected a jury trial prior to trial in the District Court. If he had so elected, the case would have been transferred to the Circuit Court for Montgomery County for a jury trial. See Code (1974, 1984 Repl.Vol., 1989 Cum.Supp.), § 4-302(e) of the Courts and Judicial Proceedings Article; Fisher v. State, supra. Kleberg did not elect a jury trial and pled not guilty.

At the conclusion of the trial, the District Court acquitted Kleberg of driving while intoxicated under § 21-902(a) of the Transportation Article but convicted him of driving while under the influence of alcohol in violation of § 21-902(b). The District Court sentenced Kleberg to 60 days incarceration, suspended the sentence, and placed him on supervised probation for nine months with the requirement to attend an alcohol education course. The court also imposed a $500 fine, of which $250 was suspended. Kleberg then filed a timely order of appeal to the Circuit Court for Montgomery County.

The record was received by the circuit court on June 16, 1989. On June 22, 1989, Kleberg filed in the circuit court a written plea of not guilty and a written demand for a jury trial. When the case was called for trial in the circuit court on October 10, 1989, the prosecuting attorney objected to the court providing a jury trial. After oral argument, the ⁴¹⁴ circuit court held that Kleberg was not entitled to a jury trial and ruled that the trial would be nonjury.

Following the nonjury trial, Kleberg was convicted of driving while under the influence of alcohol in violation of § 21-902(b) and was fined $100 plus costs. In Kleberg’s petition for a writ of certiorari, the only issue raised is whether the circuit court erred in denying a jury trial on the de novo appeal. Kleberg asserts that, with respect to demands for jury trials in de novo appeals from District Court convictions for driving while under the influence of alcohol in violation of § 21-902(b), the rulings of the judges of the Circuit Court for Montgomery County are in conflict. According to Kleberg, some of the circuit judges hold that an appellant is entitled to a jury trial in this situation, and some of the circuit judges agree with the ruling of the circuit judge below.

The State, in its response to the certiorari petition, accepts the facts set forth in the petition and does not dispute the assertion concerning a conflict among circuit court rulings. The State argues that Kleberg was not entitled to a jury trial in the circuit court because the maximum term of imprisonment for driving while under the influence of alcohol, in violation of § 21-902(b) of the Transportation Article, is two months, and because under § 4-302(e) of the Courts and Judicial Proceedings Article “a defendant is not generally entitled to a jury trial unless the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days.” The State also appears to suggest that Kleberg, by not requesting a jury trial before the trial in the District Court, had waived any right to a jury trial on a circuit court de novo appeal. We have granted Kleberg’s petition for a writ of certiorari, and we shall summarily reverse the judgment of the circuit court. Under the pertinent statutory provisions and cases, Kleberg was clearly entitled to a jury trial on his de novo appeal. ⁴¹⁵ Section 12-401(d) of the Courts and Judicial Proceedings Article states that appeals from the District Court to a circuit court in criminal cases “shall be tried de novo.” In Hardy v. State,