Defendant appeals from his conviction in Detroit Recorder’s Court, Traffic and Ordinance Division, of the offense of driving a motor vehicle while under the influence of intoxicating liquor contrary to MCLA 257.625; MSA 9.2325. The defendant was sentenced to pay a $100 fine or to serve a term of 30 days in the Detroit House of Correction, to pay $200 costs, was placed on probation for six months, no driving, and required to attend the highway safety program and to report as directed.
Defendant assigns as error the invalidity of his waiver of a jury trial, the trial court’s failure to specifically advise him that he was being represented by a student attorney, and the trial court’s denial of defense counsel’s motion for adjournment in order that a medical witness might be presented.
MCLA 763.3; MSA 28.856 gives defendants in criminal cases the right to waive a jury trial. "Except in cases cognizable by a justice of the peace”, this waiver must be in writing, signed by the defendant, filed in the cause, and made a part
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of the record. Under MCLA 774.1; MSA 28.1192, an offense punishable by a maximum fine of $100 and/or a maximum sentence of three months imprisonment is cognizable by a justice of the peace. The penalty for "DUEL” falls within this structure. MCLA 257.625(b); MSA 9.2325(2). MCLA 600.9922; MSA 27A.9922 states that statutory references to the abolished justice
f
of the peace courts are deemed to refer to the district court, unless the context otherwise indicates. Thus, a written waiver of jury trial was not statutorily compelled. See
People v Ulbrick,
A number of cases have held that in cases cognizable by a justice of the peace a waiver of the right to jury trial may be implied.
People v Weeks,
In Weeks, the waiver was upheld where the trial court asked the defendant if he desired a jury, and he replied that the court could do as it chose. The prosecutor stated he did not desire a jury, and a bench trial was held. In Redman, the defendant was charged with the same offense involved in the present case. At the beginning of the trial defendant through his attorney expressly waived his right to a jury trial. Since there was no requirement that the waiver be in writing, it was upheld.
The implied waiver theory was extended in
People v DeVine, supra,
which held that where defendant was represented by counsel, "by going to trial without objection and without any indication of a desire for a jury trial in a misdemeanor case
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he must be held to have waived by implication trial by jury”.
These cases support a conclusion that the waiver by defendant in the present case was effective. However, doubt has been injected by the recent case of
People v Harris,
On these grounds, we distinguish Harris and hold that in trials for offenses which can result in a maximum of three months’ imprisonment and/ or a maximum fine of $100, waiver of defendant’s right to a trial by jury is implied where the defendant proceeds to trial without objection and without any indication of a desire for a jury trial.
Defendant’s next assignment of error is that the
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trial court failed to advise him that he was being represented by a student attorney. At the beginning of the trial, defendant’s counsel expressly introduced himself as a student attorney. GCR 1963, 921 authorizes legal representation under certain conditions by law students after their first year in law school. It does not appear that any of the conditions of this court rule were violated. Neither did defendant’s representation violate the assistance of counsel standards of
People v Degraffenreid,
Defendant argues finally that the trial court erred reversibly in refusing to adjourn so as to enable the defendant to call a medical witness who could testify as to the defendant’s condition. The granting or denial of a continuance lies within the trial court’s discretion, and absent an abuse of this discretion the decision will not be overturned.
People v Carter,
Affirmed.