delivered the opinion of the Court.
This court granted certiorari to review a district court’s affirmance of petitioner Garсia’s conviction on a misdemeanor charge in county court after a trial by jury. The solе issue is whether the county court erred in denying the petitioner’s oral request to waive his constitutional right to a trial by jury. We reverse the district court’s judgment affirming the petitioner’s conviction.
Thе stipulated facts are that the petitioner made several oral requests in the county court to have his case tried to the court rather than to a jury. These requests were orally opposed by the district attorney. The county court refused the petitioner’s requеst based upon the prosecutor’s objections and set the matter for trial by jury. The petitiоner was found guilty and appealed the judgment of conviction to the district court. This judgment was аffirmed by the district court, which relied solely upon the language of Crim. P. 23(a)(5):
“Except as to class 1 felonies, the person accused of a felony or a misdemeanor may waive а trial by jury by express written instrument filed of record, or by his announcement in open court appearing of record if the prosecuting attorney consents. Trial shall then be by the court.”
Thе district court on considering the grounds of appeal found that no written waiver was filed by the рetitioner in the county court and that, each time an oral request was made by him, the prоsecuting attorney opposed the request. Therefore, the district court held that the сounty court correctly ordered a trial by jury because the requirements of Crim. P. 23(a)(5) had not been met. 1
At the outset, it should be noted that a defendant’s right to waive a trial by jury has been the subject of many comments and cases.
See
*415
First, under the Constitution of the United States, a criminal defendant hаs a right to a trial by jury except in petty offense cases (maximum punishment less than six months).
U.S. Const.
amend. VI;
Baldwin v. New York,
On the other hand, a prosecutor has no constitutional right to either demand or waive a trial by jury 2 (U.S. Const. amend. VI and Colo. Const. Art. II, Sec. 23, only guarantee the right to a jury trial to an accused).
In Colorado, section 18-1-406(2), C.R.S. 1973 (now in 1978 Repl. Vol. 8), and Crim. P. 23(a)(5) deal with the question of waiver of trial by jury by a criminal defendant. Section 18-1-406(2) provides:
“Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed оf record, or by announcement in open court appearing of record.”
Crim. P. 23(a)(5) рrovides an additional requirement not present in the statute, to-wit: the prosecutor’s cоnsent must be obtained as a condition before a defendant’s oral request to waive his right to a jury trial may be allowed. We conclude that the general assembly purposely exсluded the consent of the prosecutor provision in section 18-1-406(2). The statute and the rule аre not reconcilable and are in direct conflict with each other. We therefоre must determine which governs, and this turns on the question of whether the right to waive a trial by jury is procеdural or substantive.
We recognized in
Hardamon
v.
Municipal Court,
We therefore hold that the statute (section 18-1-406(2), C.R.S. 1973 (now in Repl. Vol. 8)) controls over Crim. P. 23(а)(5). The consent of the prosecuting attorney cannot be imposed by rule as a cоndition on *416 the defendant’s right to waive trial by jury. Because the petitioner’s waiver of his constitutional right to a jury trial was not allowed, his conviction cannot stand and he is entitled to a new trial. See section 13-6-310(2), C.R.S.1973.
The judgment of the district court is reversed and the cause is remanded for a new trial.
Notes
In
People v. Linton,
This court, however, has recognized that a prosecutor may have a legitimate interest in seeing that cases are tried to a jury. People v. Brisbin, supra. See also Singer v. United States, supra.