Ex Parte Boswell
Mаrk Boswell petitions this Court for the issuance of a writ of mandamus ordering the Mobile District Court to process his appeal to the Court of Criminal Appeals.
On July 6, 1989, following a bench trial, Boswell was convicted of second degree possession of marijuana, pursuant to
Pursuant to
“Appeals shall be directly to the appropriate court if:
“(1) An adequate record or stipulation of facts is available and the right to a jury trial is waived by all parties entitled thereto. . . .”
Thus, the prerequisites for a direct appeаl by Boswell to the Court of Criminal Appeals are (1) an adequate record or stipulation of facts and (2) the waiver of the right to trial by jury by Boswell and, if the State is entitled to a jury trial, then such a waiver by the State. Boswell waived his right to a jury trial; the Stаte “objected to the record” and did not waive the right to a jury trial.
The statute does not provide for an “objection to the record” but rather requires in the alternative “an adequate record” or a “stipulation of facts.” In thе case before us, the proceedings were recorded by a court reporter; the State was represented throughout the proceeding by an assistant district attorney, who offered no objection to the manner of rеcording the proceeding.1 After Boswell filed a notice of appeal to the Alabama Court of Criminal Appeals, the trial court noted that the State “objects to the record.” However, there has been no
We hаve examined the record in this case, including a transcript of the proceedings before the trial court, and we find that the record is an “adequate record” within the meaning of
The dispositive issue presented by this petition is, therefоre, whether on a misdemeanor appeal the State is entitled to a jury trial. If it is, then it can, by refusing to waive the jury-trial right, prevent Boswell from appealing directly to the Court to Criminal Appeals pursuant to
This Court has previously held in Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971), that in a noncapital felony case the defendant mаy waive a trial by jury with the consent of the State and the trial court. However, that case did not extend to misdemeanоr charges and, therefore, is not applicable to the case before us.
The district judge stated in his order denying rehearing of his order “denying” the appeal:
“[T]he Court has informed defendant‘s [attorney] that the Court would treat defendаnt‘s effort to appeal as an appeal to the Circuit Court of this County if defendant amended his pleading, thereby guaranteeing to defendant a trial de novo. The Court has further in detail discussed after argument [§]
12-12-71 , Code of [Alabama], whiсh provides the right to jury trial by an appellant or an appellee. Furthermore [§]12-12-72 provides clearly that the right tо a jury trial must be waived by all parties entitled thereto. Such is not the case herein. Accordingly the motion to reconsider is denied.”
The district judge‘s reliance on
“Except as provided in section
12-12-72 and in subsection (e) of section12-15-120 , all appeals from final judgments of the district court shall be to the circuit court for trial de novo.“An appellant shall not be entitled to a jury trial in circuit court unless it is demanded in the notice of appeal, and an аppellee shall have no right to a jury trial unless written demand is filed in circuit court within 14 days of service upon him of notice of appeal.”
The Court of Criminal Appeals has stated:
“It seems clear that
§ 12-12-71 was intended to provide an avenue by which criminal defendants or civil litigants might enjoy and be guaranteed their respective constitutional rights to a trial before a jury. . . .”
McDaniel v. State, 397 So.2d 237 (Ala.Crim.App.), cert. denied, 397 So.2d 239 (Ala. 1981) (emphasis added).
The position of the Court of Criminal Appeals in McDaniel limiting
These rights were established for the benefit and protection of the citizens of Alabama. Our constitution also declares:
“[T]his enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against аny encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is exceptеd out of the general powers of the government, and shall forever remain inviolate.”
“In all misdemeanor cases in the circuit court, the issues and questiоns of fact shall be tried by the judge of the court without the intervention of a jury except in cases where a trial by jury is demаnded in writing by the defendant.”
(Emphasis added.) Applying
In light of our conclusion that the Stаte is not a party entitled to a trial by jury on a misdemeanor appeal, within the meaning of
WRIT GRANTED.
HORNSBY, C.J., and JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX and HOUSTON, JJ., concur in the result.