STEPHANIE ANN ABE v. STATE OF MARYLAND
Court of Special Appeals, Kenney, Filed May 1, 2014*,
Jury Trial Right- There is no constitutional right to a jury trial for theft less than $100
The defendant was charged with theft less than $100 (carrying a maximum penalty of 90 days incarceration, not a sentence sufficient to allow a jury trial).
Somehow, the defendant was allowed to pray a jury trial to circuit court, where the court remanded the case back to district court.
The defendant appealed this remand under the collateral order doctrine, causing the CoSA to determine the substantive issue in order to determine whether appeal was allowed (if they had a right to an initial jury trial, the appeal should be allowed; if they did not have the initial right to a jury trial, the appeal was premature… and moot, really).
The court considered three factors-
1) Historical Jurisdiction- whether the offense had historically been considered a petty offense subject to the jurisdiction of justices of the peace or whether it had historically been tried before juries.
2) Penalty- whether the accused is subject to an infamous penalty (does the offense have a significant statutory penalty or is the accused subject to incarceration in the penitentiary?)
3) Status- whether the offense is an infamous crime or considered a serious offense
Historical Jurisdiction: The CoSA noted that historically, petty theft was tried in England by a justice of the peace.
Penalty: The CoSA noted that the penalty of 90 days would not subject a defendant to “infamous penalty” (imprisonment in a penitentiary)
Status: The CoSA notes the Court of Appeals’ statement in Kawamura v. State, 299 Md. 276, 282-83 (1984) that “[t]heft, regardless of the amount involved, is and always has been regarded as an extremely serious offense in Maryland,” but then trails off with regard to this factor. The CoSA equates theft<$100 to the DUI/DWI distinction created to keep "less serious" cases in district court. Of course, whether the legislature wanted the case in district court isn't really the point of a "status" inquiry with regard to a constitutional analysis of a jury trial right... and the CoSA did not address the issue of impeachment with a theft>$100 conviction or any other collateral issue (security clearance, job opportunities, societal condemnation, etc).
So for now, theft > $100 continues to have no initial jury-trial right, but I would be surprised if the Court of Appeals doesn’t pick this issue up in the future (if not this precise case).