382 S.E.2d 568

#### Stephen Shawn GAPP v. B. Malin FRIDDLE, Municipal Judge of the Town of Moorefield.

No. 19043.

Supreme Court of Appeals of West Virginia.

July 5, 1989.

J. David Judy, III, Judy & Judy, Moore-field, for Gapp.

Howard E. Krauskopf, Moorefield, for B. Malin Friddle.

PER CURIAM:

Stephen Shawn Gapp seeks to prohibit1 prosecution against him for his alleged violation of several municipal ordinances and three State statutes until he is afforded a jury trial as provided by Art. Ill, § 14 of the West Virginia Constitution.2 Gapp con*375tends that he is entitled, to a jury trial because the charges against him carry the possibility of incarceration and substantial fines.

On March 17, 1987, Stephen Gapp was charged with battery in violation of W.Va. Code § 61-2-9(c) (1978), obstructing a police officer in violation of W.Va.Code § 61-5-17 (1923), and resisting arrest in violation of W.Va.Code § 61-6-lb(a) (1987).3 Both West Virginia Code §§ 61-2-9(c) and 61-5-17 are misdemeanors and may he punished by up to one year’s incarceration.4 The charges were filed in municipal court, and the trial was scheduled for May 11, 1989.

On April 26, 1989, Mr. Gapp filed a motion requesting a jury trial in the Municipal Court of Moorefield. In an order dated April 28, 1989, the municipal judge denied this request. Despite language in the State statutes permitting a jail sentence, the Municipal Court represented that under no condition would the defendant be incarcerated; thus, the petitioner was not entitled to a trial by jury. The petitioner then filed the same motion in the Circuit Court of Hardy County, which affirmed the Municipal Court’s ruling.

Disposition of this case is controlled by our holding in *Champ v. McGhee,*165 W.Va. 567, 270 S.E.2d 445 (1980). In the sole syllabus point of *Champ v. McGhee, supra,*we held:

> Under art. 3, § 14 of the West Virginia *Constitution,*the right to a jury trial is accorded in both felonies and misdemeanors when the penalty imposed involves any period of incarceration.5

*See also City of Fairmont v. Schumaker,*180 W.Va. 153, 375 S.E.2d 785 (1988); *Scott v. McGhee,*174 W.Va. 296, 324 S.E.2d 710 (1984); *c.f., Hendershot v. Hendershot,*164 W.Va. 190, 263 S.E.2d 90 (1980).

The town contends that Mr. Gapp is not entitled to a jury trial because the Municipal Court promised that under no condition would the petitioner be incarcerated. In support of this proposition, the town directs our attention to dicta in *Champ v. McGhee, supra.*In *Champ v. McGhee,*165 W.Va. at 571, 270 S.E.2d at 447, we suggested:

> Similarly, if the judge signifies in advance of trial that the matter is exclusively administrative, such as a parking fine, and that notwithstanding provisions in the ordinance which permits a jail sentence, he will under no condition impose *376one, then the trial may proceed without a jury.

We concede that this language appears to compromise the syllabus of that opinion. It is the gravity of the offense, and not the punishment ultimately inflicted, that creates a defendant’s right to trial by jury. An appropriate yardstick to measure the gravity of the offense is whether the Legislature has provided for possible incarceration.6 If it has, the right to a jury trial attaches as soon as the defendant is charged. This right is the defendant’s, and can be waived by him alone. It cannot be disparaged by a judge’s premature sentencing decisions.

Because both W.Va.Code §§ 61-5-17 and 61-2-9(c) provide for a possible jail sentence, we grant a writ of prohibition to prohibit petitioner’s trial without a jury.

Writ granted.

1

. Petitioner also seeks a writ of mandamus. Both writs seek essentially the same relief — that the petitioner cannot be prosecuted for the crimes charged without a jury trial.

2

. Article III, § 14 of the West Virginia Constitution provides, in pertinent part: "Trials of crimes, and misdemeanors, unless herein other*375wise provided, shall be by a jury of twelve men

3

. The petitioner was also charged with violating corresponding provisions of the Moorefield City Code which provide for the same penalties as State law.

4

. West Virginia Code § 61-6-lb(a) is a misdemeanor and punishable by a fine not to exceed one hundred dollars.

5

. Several jurisdictions have held that a jury trial is required whenever the possible sanctions include imprisonment. *E.g., Baker v. City of Fairbanks,*471 P.2d 386 (Alaska 1970) (Alaska Constitution requires jury trial for any offense that involves a possibility of incarceration or loss of valuable license); *State v. Bennion,*112 Idaho 32, 730 P.2d 952 (1986) (Art. I, § 7 of the Idaho Constitution guarantees jury trial whenever possible sanction includes imprisonment); *People v. Villarreal,*114 IIl.App.3d 389, 70 Ill.Dec. 324, 449 N.E.2d 198 (1983) (Rule of criminal procedure provides for the right to a jury trial in any case involving a misdemeanor even if crime is punishable by a fine only); *Marzen v. Klousia,*316 N.W.2d 688 (Iowa 1982) (magistrate violated rule of criminal procedure when he denied defendant a jury trial in a simple misdemeanor case after timely demand was made); *State v. Sklar,*317 A.2d 160 (Maine 1974) (Maine Constitution guarantees a jury trial for every prosecution which is criminal, regardless of whether it is "petty or "serious”); *Cahill v. Fifteenth Dist. Judge,*70 Mich.App. 1, 245 N.W.2d 381 (1976) (whenever defendant may receive a jail sentence he has a constitutional right to a jury trial); *Peterson v. Peterson,*278 Minn. 275, 153 N.W.2d 825 (1967) (state constitution confers jury trial for all criminal prosecutions, regardless of gravity); *State v. Becker,*130 Vt. 153, 287 A.2d 580 (1972) (jury trial is required by state constitution for all criminal offenses, even if maximum penalty involves no incarceration and only a $50 fine); *City of Pasco v. Mace,*98 Wash.2d 87, 653 P.2d 618 (1982) (state constitution guarantees a right to a trial by jury for every petty offense); *State ex rel. Murphy v. Voss,*34 Wis.2d 501, 149 N.W.2d 595 (1967) (constitutional right to a jury trial extends to all misdemeanors).

The minimum requirements of when the right to a trial by jury attaches under the Federal Constitution are prescribed in *Duncan v. Louisiana,*391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

6

. We need not, and do not, decide at what point a criminal statute prescribing only a fine may nonetheless create an offense grave enough to invoke the guarantee of art. Ill, § 14 of the West Virginia Constitution.