Printable Format22-3404. Misdemeanor, cigarette or tobacco infraction and traffic infraction case; method of trial. (1) The trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant.
(2) A jury in a misdemeanor case shall consist of six members.
(3) Trials in the municipal court of a city shall be to the court.
(4) Except as otherwise provided by law, the rules and procedures applicable to jury trials in felony cases shall apply to jury trials in misdemeanor cases.
(5) The trial of cigarette or tobacco infraction or traffic infraction cases shall be to the court.
History: L. 1970, ch. 129, § 22-3404; L. 1976, ch. 163, § 19; L. 1977, ch. 112, § 8; L. 1981, ch. 154, § 1; L. 1984, ch. 39, § 40; L. 1989, ch. 100, § 1; L. 1990, ch. 109, § 1; L. 1996, ch. 214, § 32; L. 1998, ch. 192, § 4; May 28.
Source or Prior Law:
62-1401, 63-302, 63-305.
Law Review and Bar Journal References:
Traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 352 (1970).
"Municipal Corporations—Home Rule—City Ordinance Concerning Weapon Control Is Within the Scope of the Kansas Home Rule Amendment," 24 K.L.R. 421, 431 (1976).
"Survey of Kansas Law: Criminal Law and Procedure," Keith G. Meyer, 27 K.L.R. 391, 393 (1979).
Criminal Procedure Survey, 55 K.L.R. 797 (2007).
Criminal Procedure Survey, 56 K.L.R. 810 to 813 (2008).
CASE ANNOTATIONS
1. Cited in holding district court erred in civil case in compelling appellant to submit to trial by jury of six. Bourne v. Atchison, Topeka and Santa Fe Railway Company, 209 Kan. 511, 514, 497 P.2d 110.
2. Section pertains to method of trial; not inconsistent with section pertaining to defendant's presence at trial. State v. Cade, 210 Kan. 544, 545, 546, 502 P.2d 782.
3. Failure to advise of right to trial by jury; no waiver; conviction reversed. State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225.
4. Silent record no presumption jury trial right waived; statute inapplicable where counsel appointed moments before trial. State v. Dickson, 9 Kan. App. 2d 425, 426, 680 P.2d 313 (1984).
5. Discussed; to waive felony jury (K.S.A. 22-3403(1)) determined; defendant, prosecution and court must agree; two of three insufficient. State v. Siver, 237 Kan. 569, 571, 701 P.2d 699 (1985).
6. Cited; absence of defendant or counsel at misdemeanor appeal trial (K.S.A. 22-3405) where untimely request for jury (K.S.A. 22-3609) made discussed. City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 593, 705 P.2d 564 (1985).
7. Defendant personally, and not counsel, as having the right to assent to a jury less than 12 noted. State v. Roland, 15 Kan. App. 2d 296, 297, 807 P.2d 705 (1991).
8. Amendment effective July 1, 1990, eliminating right to jury trial for traffic infractions operates prospectively only. State v. Chapman, 15 Kan. App. 2d 643, 814 P.2d 449 (1991).
9. Whether defendant charged with offense punishable by more than six months must request jury trial within seven days after trial notification examined. State v. Jones, 19 Kan. App. 2d 982, 983, 879 P.2d 1141 (1994).
10. Whether jury trial request must be made within seven days of case assignment or trial setting; "trial assignment" construed. State v. Bell, 20 Kan. App. 2d 193, 194, 200, 884 P.2d 1164 (1994).
11. Whether defendant has right to jury trial in appeal of municipal traffic infraction to district court examined. City of Wichita v. Rice, 20 Kan. App. 2d 370, 374, 889 P.2d 789 (1995).
12. Claim of improperly credited jail time does not constitute claim that sentence was illegal. State v. Lofton, 272 Kan. 216, 32 P.3d 711 (2001).
13. Cited, defendant failed to request jury trial within seven days of bench trial assignment. State v. Sykes, 35 Kan. App. 2d 517, 523, 132 P.3d 485 (2006).
14. Mentioned in case involving time limits under K.S.A. 22-3402 and defendant's continuance requests. State v. Lawrence, 38 Kan. App. 2d 473, 167 P.3d 794 (2007).
15. Whether a defendant has a statutory right to a jury trial in a misdemeanor case depends on whether the defendant requests the jury trial within the time frame set out by statute; without that request, the defendant's statutory jury trial right is not violated when the case is tried before a judge sitting without a jury. State v. Woolverton, 52 Kan. App. 2d 700, 706-07, 371 P.3d 941 (2016).
16. Seven-day clock to request a jury trial in misdemeanor cases begins when a judge is appointed to preside over the case at trial. Wichita v. Grasty, 61 Kan. App. 2d 202, 209, 500 P.3d 1201 (2021).