                    SUPREME COURT OF ARIZONA
                             En Banc

PHOENIX CITY PROSECUTOR’S OFFICE, )   Arizona Supreme Court
                                  )   No. CV-07-0265-PR
                                  )
                      Petitioner, )   Court of Appeals
                                  )   Division One
                 v.               )   No. 1 CA-SA 07-0029
                                  )
THE HONORABLE GLORIA YBARRA,      )   Maricopa County
JUDGE OF THE PHOENIX MUNICIPAL    )   Superior Court
COURT,                            )   No. LC2007-000005-001 DT
                                  )
                Respondent Judge, )   Phoenix Municipal Court
                                  )   No. 13379681
JOSHUA PRICE LANDERS,             )
                                  )
          Real Party in Interest. )
                                  )   O P I N I O N
_________________________________ )


             Appeal from the Phoenix Municipal Court
                The Honorable Gloria Ybarra, Judge

                      REVERSED AND REMANDED
________________________________________________________________

          Opinion of the Court of Appeals Division One
               215 Ariz. 374, 160 P.3d 695 (2007)

                             VACATED
________________________________________________________________

AARÓN J. CARREÓN-AÍNSA, PHOENIX CITY PROSECUTOR             Phoenix
KERRY G. WANGBERG, FORMER PHOENIX CITY PROSECUTOR
     By   Gary L. Shupe, Assistant City Prosecutor
Attorneys for Phoenix City Prosecutor’s Office

Jonathan L. Warshaw                                      Gilbert
Attorney for Joshua Price Landers
________________________________________________________________

R Y A N, Justice
¶1           For misdemeanor driving under the influence (“DUI”)

offenses, Arizona Revised Statutes (“A.R.S.”) section 28-1381(F)

(1998 and Supp. 2005) provides that “[a]t the arraignment, the

court shall inform the defendant that the defendant may request

a    trial   by   jury   and   that   the   request,   if   made,   shall   be

granted.”     We hold that this statute does not allow a defendant

to waive a jury trial without the consent of the prosecution.

                                            I

¶2           The Phoenix City Prosecutor’s Office charged Joshua

Price Landers in municipal court with two DUI offenses:              driving

while impaired to the slightest degree in violation of A.R.S. §

28-1381(A)(1) (Supp. 2005) and having an “alcohol concentration

of 0.08 or more within two hours of driving” in violation of

A.R.S. § 28-1381(A)(2) (Supp. 2005).             Both offenses are class

one misdemeanors.        A.R.S. § 28-1381(C) (Supp. 2005).           Landers

requested a jury trial under A.R.S. § 28-1381(F).                   The jury

acquitted Landers of the impaired driving charge but found him

guilty of having a blood alcohol concentration of more than 0.08

within two hours of driving.           Landers filed a motion for a new

trial, which the municipal court granted.

¶3           Before the retrial, Landers filed a “Waiver Of His

Right To Jury Trial.”          The prosecutor opposed Landers’ waiver

and demanded a jury trial, citing, inter alia, A.R.S. § 13-3983

(2001), which permits waiver of trial by jury only with “the
                                       2
consent of both parties expressed in open court and entered on

its minutes,” and Arizona Rule of Criminal Procedure 18.1(b),

which similarly provides that a “defendant may waive the right

to trial by jury with consent of the prosecution and the court.”

¶4           The municipal court granted Landers’ motion, finding

that A.R.S. § 28-1381(F) gives a defendant the statutory right

to a jury trial.             The court also concluded that although a

defendant may waive that right, “nothing in the statute requires

the consent or approval of the state.”

¶5           The prosecution filed a petition for special action in

the    superior      court   challenging    the    municipal   court’s   ruling.

The superior court declined to accept jurisdiction.

¶6           The     prosecution    subsequently      sought   relief    in   the

court of appeals.            That court accepted jurisdiction but, with

one judge dissenting, denied relief.                 The majority held that

“[a]     plain     reading    of   [A.R.S.    §    28-1381(F)]    compels     the

conclusion that only the defendant is entitled to a jury trial

and only if the defendant asks for it.                Thus, if no request is

made by the defendant, the case will not be tried before a

jury.”      Phoenix City Prosecutor’s Office v. Ybarra (Landers),

215 Ariz. 374, 377, ¶ 10, 160 P.3d 695, 698 (App. 2007).                    Judge

Hall dissented, stating that a defendant does not have “the

right to be tried without a jury.”                Id. at 381, ¶ 30, 160 P.3d

at    702   (Hall,    J.,    dissenting).     He    reasoned   that   the   plain
                                        3
language     of    Rule    18.1(b)    and      A.R.S.     §       13-3983       requires        the

consent      of    the    prosecution       before      the        court        may    grant      a

defendant’s request to waive a jury trial.                        Id.

¶7           We     granted      review   to     resolve          this    issue       of    first

impression        and    statewide    concern.       See          ARCAP       23(c)(3).          We

exercise     jurisdiction        under    Article       6,    Section          5(3),       of   the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

                                            II

¶8           Landers       contends    that      A.R.S.       §    28-1381(F)         grants     a

defendant a right to elect a bench trial for a misdemeanor DUI

offense.      He argues that “the plain language of A.R.S. § 28-

1381(F) vested [him] with the option – but not the obligation -

to request a jury trial, and . . . the statute does not grant

the   [prosecution]          a    reciprocal      option.”                The     prosecution

counters that, even though a defendant may elect to forgo the

right to jury trial under A.R.S. § 28-1381(F), A.R.S. § 13-3983

and   Rule    18.1(b)       condition     that     right          on    the     prosecution’s

consent.      Thus, the crux of the dispute here is whether, for a

misdemeanor DUI offense, the prosecution has a right to veto a

defendant’s request to have a bench trial.

¶9           The parties do not contest that A.R.S. § 28-1381(F)

grants a defendant charged with a misdemeanor DUI offense a

statutory right to a jury trial if requested.                                   See Manic v.

Dawes (Tucson City Attorney’s Office), 213 Ariz. 252, 254, ¶ 9,
                                            4
141 P.3d 732, 734 (App. 2006) (holding that § 28-1381(F) created

a substantive right to a jury trial); State ex rel. Wangberg v.

Smith (Levinson), 211 Ariz. 101, 104, ¶ 11, 118 P.3d 49, 52

(App. 2005) (same).             On its face, however, this statute only

requires that, at arraignment, the magistrate advise a defendant

of the right to a jury trial, and if one is requested, grant it.

The statute is silent on when such a request must be made or

what   happens    if     a    defendant         does      not    demand       a   jury   trial.

Section 22-320(A) (2002) fills in some of the gaps in limited

jurisdiction      courts,      providing             generally,       that    “[u]nless       the

demand [for a jury trial] is made at least five days before

commencement      of   the     trial,       a    trial     by    jury      shall    be   deemed

waived.”        But this statute, which is purely procedural,                                  see

Goldman    v.    Kautz,      111    Ariz.        431,     432,       531   P.2d    1138,      1139

(1975),    does    not       confer     a       right     to     a    jury    trial      on   the

prosecution      nor    speak      at   all          to   the    issue       of   whether     the

defendant’s waiver requires the prosecution’s consent.1

¶10         A third statute, A.R.S. § 13-3983, squarely addresses

this   issue.          Since       before        statehood           the   legislature        has

consistently required the prosecution’s consent before a jury

1
     Cf. Manic, 213 Ariz. at 254, ¶ 12, 141 P.3d at 734
(observing that although § 22-320(A) provides that a jury trial
is deemed waived if not timely requested, “[g]enerally, waiver
of a jury trial does not occur by default”) (citing State v.
Jelks, 105 Ariz. 175, 177, 461 P.2d 473, 475 (1969), and Rule
18.1).
                                                 5
trial can be waived in a criminal action.                      See Rev. Stat. of

Ariz., Penal Code § 895 (1901) (“Issues of fact must be tried by

jury unless a trial by jury be waived in criminal cases not

amounting to felony, by the consent of both parties, expressed

in open court and entered in its minutes.”); Rev. Stat. Ariz.

Penal Code § 1006 (1913) (same); Ariz. Rev. Code § 5027 (1928)

(“Issues of fact must be tried by jury, unless a trial by jury

be waived in actions not amounting to felony, by the consent of

both   parties,      expressed     in    open    court       and   entered    on    its

minutes.”); Ariz. Code Ann. § 44-1807 (1939) (same); A.R.S. §

13-1593     (1956)   (“A   trial   by    jury    may    be    waived    in   criminal

actions not amounting to felony by the consent of both parties

expressed in open court and entered on its minutes.”).                       In 1978,

the legislature amended A.R.S. § 13-3983 to provide that “[a]

trial by jury may be waived in criminal actions by the consent

of   both   parties    expressed    in    open    court      and   entered     on   its

minutes.”      1978    Ariz.   Sess.     Laws,    ch.    201,      §   250   (2d    Reg.

Sess.).     Section 13-3983 therefore plainly requires the consent

of the prosecution before a jury trial may be waived.                         Nothing

in the legislative history or the plain language of A.R.S. § 28-

1381(F)2 reflects any legislative intent to displace § 13-3983.


2
     The original version of what is now A.R.S. § 28-1381(F) was
promulgated in 1973 as part of the implied consent statute
relating to the offense of driving while under the influence of
intoxicating liquor, A.R.S. § 28-691.    1973 Ariz. Sess. Laws,
                                          6
¶11        The       court    of    appeals     acknowledged          that    “the    plain

language of A.R.S. § 13-3983” gives the prosecution the right to

object    to    a    defendant’s       decision        to     forgo    a     jury    trial.

Landers, 215 Ariz. at 379, ¶ 20, 160 P.3d at 700.                          But the court

believed that such a reading of § 13-3983 “would effectively

grant” jury-trial rights to the prosecution in misdemeanor DUI

cases.    Id.       It contrasted the jury-trial right here to one that

was   constitutionally             based;   the    court          reasoned     that        the

rationale “for allowing the [prosecution] to obtain a jury trial

in the face of a defendant’s waiver of a constitutional right to

a jury [does] not apply to a waiver of a statutorily created

jury-trial right.”           Id. at 377, ¶ 14, 160 P.3d at 698.

¶12        We do not agree that the statutory requirement that

the prosecution consent to a jury trial waiver depends upon

whether    that      right     originates       from        the   constitution        or    a



ch. 150, § 1 (1st Reg. Sess.). The legislature appeared to be
responding to the holding of Rothweiler v. Superior Court (City
of Tucson), 100 Ariz. 37, 46, 410 P.2d 479, 486 (1966),
abrogated in part by Derendal v. Griffith, 209 Ariz. 416, 104
P.3d 147 (2005), that DUI defendants have a constitutional right
to a jury trial.      See State ex rel. McDougall v. Strohson
(Cantrell), 190 Ariz. 120, 126, 945 P.2d 1251, 1257 (1997)
(observing that the legislature “codified the Rothweiler rule
requiring jury trials . . . in DUI cases”); Manic, 213 Ariz. at
254, ¶ 12, 141 P.3d at 734 (suggesting that, in enacting A.R.S.
§ 28-1381(F), “the legislature intended . . . to create a
statutory   right   to   a   jury  trial   that   parallels  the
constitutional right to a jury trial”). Because we resolve this
case on other grounds, we need not decide whether jury trials in
misdemeanor DUI cases are constitutionally required.
                                            7
statute.        Rather, A.R.S. § 13-3983 plainly requires, in all

criminal cases, the consent of the prosecutor before a defendant

may    forgo    a       jury     trial;          this       statute      does       not    distinguish

between     whether            the      jury-trial              right         is    based        on     the

constitution or on a statute.                              In fact, the court of appeals’

rationale      for       requiring          prosecutorial              consent       only       when    the

constitution            requires       a    jury           trial    is       contradicted        by     the

history of § 13-3983.

¶13            The predecessor statutes to A.R.S. § 13-3983 permitted

jury trial waivers only in misdemeanor cases.                                       See, e.g., Rev.

Stat. of Ariz., Penal Code § 895 (1901); Ariz. Code § 44-1807

(1939).     Many of the misdemeanor offenses in the penal codes did

not trigger a constitutional right to a jury trial.                                         See, e.g.,

Ariz. Code § 43-5809 (1939) (misdemeanor to alter or deface

marks on logs or lumber); id. § 43-5816 (misdemeanor for failure

to    return        a    book      to       a     public           library);        id.     §    43-5819

(misdemeanor            to    permit       swine           or   fowl     “to       run    at    large”).

Accordingly, A.R.S. § 13-3983 plainly applies to the statutory

jury-trial right provided by § 28-1381(F).

¶14            In       sum,     nothing          in        A.R.S.       §    28-1381(F),            either

explicitly or implicitly, evidences an intent of the legislature

to    abrogate      §        13-3983       and    single        out      misdemeanor           DUI    cases

brought under § 28-1381 as according a defendant a unilateral


                                                       8
right to demand and receive a bench trial.3 Instead, § 13-3983

requires that in all criminal cases the right to a bench trial

is conditioned on the prosecution’s consent.   Thus, that statute

requires the prosecution’s agreement before the court may grant

a defendant’s request for a bench trial in a misdemeanor DUI

case.4

                               III

¶15       For the foregoing reasons, we vacate the opinion of

the court of the appeals, reverse the decision of the municipal

court, and remand for proceedings consistent with this opinion.




                         _______________________________________
                         Michael D. Ryan, Justice

CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Rebecca White Berch, Vice Chief Justice

3
     Although the legislature could have given a defendant an
unconditional right in A.R.S. § 28-1381(F) to forgo a jury
trial, it did not do so.
4
     Because we decide this case on the language of the statutes
at issue here, we find it unnecessary to discuss whether Rule
18.1(b) requires the prosecution’s consent to a defendant’s
decision to forgo a jury trial for a misdemeanor DUI offense.
                                9
_______________________________________
Andrew D. Hurwitz, Justice


_______________________________________
W. Scott Bales, Justice




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