# Petition for Writ of Certiorari — Bishop v. Nebraska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0676%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 924 ## Text # Seorecsa Doert, 0.5, | FILED JUL 2g 1987 JOSEPH F. SPANIOL, JR, 87-145 ____ ere 1 In The Supreme Court of the United States October Term, 1986 o ARCHIE M. BISHOP, Petitioner, vs. STATE OF NEBRASKA, Respondent. > PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF NEBRASKA co) CiypvEe F. Starrett 106 West C Street McCook, NE 69001 (308) 345-1780 Attorney for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 cr call collect (402) 342-2831 QUESTION PRESENTED Is the County Court required to grant a jury trial on three (3) counts stemming from the same incident when a jury trial was not knowingly and intelligently waived on the three (3) counts after the Supreme Court of Ne- braska, in State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987) mandated a new trial on one (1) count which ecar- ried a possible one (1) year jail sentence, even though no jail time was ordered after the trial, but denied a new trial as to the other two (2) counts even though the two (2) counts each carried a possible seven (7) day jail sentence? li TABLE OF CONTENTS Pages OU BRI PMs CEE intention eoueisaah i OR ETI BERIT disci deiniecscusis aienecaedisbaiaieenain 2 Ab it ii) Se 2) nee eran aime ees Se a eer cms 2 QUESTION PRESENTED 2 CONSTITUTIONAL PROVIE«AGs 3 STATEMENT Oe 2 aeee eee ace ese 3 REASONS FOR GRANTING THE WRIT _W sie 5 1. The decision of the Nebraska Supreme Court appears to be contrary to Codispoti v. Pennsyl- vania which holds that where several contempts are involved for which the penalty for all would exceed 6 months in jail, the contemnor is entitled to a jury trial even though the sentence for any one contempt charge did not exceed 6 months. —. . 2. The decision of the Nebraska Supreme Court would also appear to be in conflict with United States v. Potvin (1973) and again in Haar v. Han- rahan (1983), both in the 10th Cireuit, and both setting forth the holding that a defendant is en- titled to a jury trial for multiple petty offenses arising out of the same act, transaction, or oceur- rence, if threatened at the commencement of trial with an aggregate potential penalty of greater than 6 months imnrisonment. cece 3. The decision of the Nebraska Supreme Court also appears to be in conflict with the decision of 1985, of the New Mexico Court in Vallejos v. Barnhart, wherein a jury trial was granted on multiple counts of petty offenses when the pos- sible penalties could exceed 6 months in Jail. .......... CONCLUSION cnc cee pA og i ft) 5 a enOnnN eles sy Ste eC TED Esc, App. 8 ill TABLE OF AUTHORITIES Pages CasEs: Baldwin v. New York, 339 U.S. 66, 90 S.Ct. 1886, 26 L.Pid.2d 437 (1970) ... 5, 9 Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 42 L.Ed.2d 912 (1974) .......... . 6,9 Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) 5,7,9 Haar v. Hanrahan, 708 F.2d 1547 (1983) 6, 7,8, 9, 10 Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) é 9 State v. Bishop, 224 Neb. 522, 199 N.W.2d 271 (1987) os : 2, a, 6, ¥ 8, 9 State v. Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985) Ss a 9 United States v. Potvin, 481 F.2d 380 (1973) 6,7,8 Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121 I al hasianecpenicseweepuaiolnnppienmioaani 8,9 CoNSTITUTIONAL Provision Amendment VI. Constitution of the United States ....... 3 STATUTES 28 U.S.C. § 1257(3) ......... BLT OS Ne ee OE OO aS Section 28-904 R.R.S. 1943 as amended ...... ESAT 4 Section 39-669.07 R.R.S. 1943 as amended — 0. 4 Section 39-669.08 R.R.S. 1943 as amended 0. 4 Texts 59 Towa Law Review 614 (1974) —_££___................. 7 In The Supreme Court of the United States October Term, 1986 ARCHIE M. BISHOP, Petitioner, vs. STATE OF NEBRASKA, Respondent. co) PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF NEBRASKA The Petitioner, Archie M. Bishop, respectfully prays that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Nebraska entered in this proceedings on January 16, 1987. 2 OPINION BELOW The Supreme Court of the State of Nebraska over- ruled a motion for rehearing in this case. The Nebraska Supreme Court issued an opinion on the issues in this case in State v. Bishop, reported at 224 Neb. 522, 399 N.W. 2d 271 (1987). (erder and opinion appended). } JURISDICTION The judgment of the Supreme Court of Nebraska was entered January 16, 1987. The overruling of the motion for rehearing in the Supreme Court of Nebraska was en- tered on the Courts docket sheet June 3, 1987, without opinion. This Court’s Jurisdiction is invoked under 28 U.S.C. § 1257(3). QUESTION PRESENTED Is the County Court required to grant a jury trial on three (3) counts steming from the same incident when a jury trial was not knowingly and intelligently waived on the three (3) counts after the Supreme Court of Nebraska, in State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987) mandated a new trial on one (1) count which carried a possible one (1) year jail sentence, even though no jail time was ordered after the trial, but denied a new trial as to the other two (2) counts even though the two (2) counts each carried a possible seven (7) day jail sentence? a CONSTITUTIONAL PROVISION AMENDMENT VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining wit- nesses in his favor, and to have the Assistance of Counsel for his defense. STATEMENT OF THE CASE Petitioner is older and longtime resident of McCook, NE 69001. Early in the evening of December 22, 1984, petitioner drove his car home from the West Sale Barn of MeCook. This was less than a mile. An officer in a cruiser traveling in the opposite direction—south thought she heard ‘*metal on metal’’. She turned around and followed the petitioner into his yard. Arrested petitioner and with help placed him in her cruiser. At the station she asked peti- tioner te take the test for alcohol in the body, which test petitioner refused. On January 17, 1986, petitioner was charged with four (4) misdemeanors: Leaving the scene, resisting arrest, driving while intoxicated, and failure to take the test for aleohol in the body. Not guilty pleas were entered to all counts. The Court did not inquire specifically of the peti- 4 tioner as to his wishes as to a jury. Demand for a jury was made in writing with other motions. On March 8, 1985, the Court denied petitioner’s re- quest for a jury. Holding that the Court believed the re- quest in writing was not filed within ten (10) days of en- tering the pleas. Court also ruled on other motions. As to the trial to the Court on April 25, 1985, the Court found petitioner innocent of leaving the scene, but guilty of resisting arrest, driving while intoxicated and failure to take the chemical test. With other possible penalties, as to maximum jail sentences: the resisting arrest is a maximum of one (1) year in jail, Section 28-904 R.R.S. 1943 as amended; driving while intoxicated is a maximum of seven (7) days in jail, Section 39-669.07 R.R.S. 1943 as amended; and failure to take the test is a maximum of seven (7) days in jail, Section 39-669.08 R.R.S. 1943 as amended. At sen- tencing for resisting arrest, the petitioner was fined $250; for driving under the influence, petitioner was fined $250, ordered to jail for 7 days and his drivers license was sus- pended for 6 months; and for failure to take the chemical test, petitioner was fined $200, ordered to jail for seven (7) days and his drivers license was suspended for 6 months. The jail time and license suspension were or- dered to be concurrent. On appeal to the District Court of Red Willow County, Nebraska, the judgment and sentences were affirmed. On appeal to the Supreme Court of the State of Ne- braska, Count 1 of driving while intoxicated was modified to a $200 fine, otherwise affirmed; Count II, failure to take the chemical test was affirmed; and Count LII resisting arrest was remanded for a new trial. nb REASONS FOR GRANTING THE WRIT 1. The decision of the Nebraska Supreme Court ap- pears to be contrary to Codispoti v. Pennsylvania which holds that where several contempts are involved for which the penalty for all would exceed 6 months in jail, the con- temnor is entitled to a jury trial even though the sentence for any one contempt charge did not exceed 6 months. Of course the main difference between State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987), and Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), is that Codispoti is a contempt case. Even though the penalty had not been previously set by a legislative body, which is the case with Bishop, the United States Su- preme Court found that a jury trial was warranted after the aggregate sentence exceeded the 6 months usual dis- tinction between petty and serious offenses. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In the Bishop case the maximum jail sentence had been prescribed for the offenses charged. Resisting arrest was up to 1 year in jail, driving while intoxicated a possible 7 days in jail, and refusal to take the test also a possible 7 days in jail. The reasoning of Codispoti should extend to Bishop because Bishop was facing a possible sentence of 1 year and 14 days in jail. The Nebraska Supreme Court grants a new trial in Bishop on the charge with a possible 1 year jail sentence, but not for the 1 year and 14 days. A 1 year jail sentence is a serious offense and 1 year and 14 days in jail is a more serious offense. In Baldwin +. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Bd.2d 437 (1970), 6 Justice White indicated that any prison sentence can have a profound effect on a defendant. This Court should use the Codispoti as a basis for a writ of Certiorari to issue to review the judgment of the Supreme Court of the State of Nebraska. 2. The decision of the Nebraska Supreme Court would also appear to be in conflict with United States v. Potvin (1973), and again in Haar v. Hanrahan (1983), both of the 10th Circuit, and both setting forth the holding that a de- fendant is entitled to a jury trial for multiple petty of- fenses arising out of the same act, transaction, or occur- rence if threatened at the commencement of trial with an aggregate potential penalty of greater than 6 months im- prisonment. Clearly United States v. Potvin, 481 F.2d 380 (1973) holds contrary to Nebraska in Bishop. As in Potvin the sentence imposed was only ninety days on one count and 6 months probation on the second count. At the commence- ment of trial the defendants in Potvin faced a possible jail confinement exceeding 6 months. The Potvin Court sent the case back for a new trial when a jury had been denied initially. The same 10th Circuit Court in a case 10 years later and in 1983 reviewed the problem once more. This was in Haar v. Hanrahan, 708 F.2d 1547 (1983), wherein a new trial was not granted only because the defendant on a trial de novo faced a sentence of no more than 180 days. The Haar Court did ask for help from the United States Su- preme Court, at page 1553 of 708 F.2d. The Haar Court is asking if a ‘‘serious offense’’ means a cumulation of petty offenses so as to require a jury trial? How can it be other- wise when the sentence becomes one of a potential prison term of more than 6 months, it is serious, see Duncan. In Haar, the Court debates itself about a subjective objective approved possibility from Potvin. This seemed to have originated with Aggregation of Sentences: Obtain- ing Jury Trials for Petty Offenders, 59 Iowa L.Rev. 614 (1974). The Haar Court did not want to sanction the ob- jective approach which would allow aggregation of charges of multiple petty offenses to become a ‘‘serious crime”’ for which a jury would be mandated. But even so, the Haar Court goes on to say, ‘*We hold that a defendant is entitled to a jury trial for multiple petty offenses arising out of the same act, transaction, or occurence only if he is actually threat- ened at the commencement of trial with an aggregate potential penalty of greater than six months imprison- ment.’’ at page 1553 of 708 F.2d. The Nebraska Supreme Court in Bishop was not both- ered by the objective subjective approach. As to the re- sisting arrest charge and granting the new trial, this would have to be objective because the County Court gave no sen- tence to jail and the Supreme Court granted a new trial, while with the other two offenses which would have in- creased the aggregate jail sentence, no new trial was granted. As to the last two offenses mentioned this would have to have been the subjective approach. If the objec- tive approach has merit, and it does, the Court should be consistent and used the objective approach throughout its resolution of the Bishop case. We would again ask this Court to use Potvin and Haar holdings as a basis for a writ of Certiorari to issue to re- view the judgment of the Supreme Court of the State of Nebraska. 3. The decision of the Nebraska Supreme Court also appears to be in conflict with the decision of 1985, of the New Mexico Court in Vallejos v. Barnhart wherein a jury trial was granted on multiple counts of petty offenses when the possible penalties could exceed 6 months in jail. The New Mexico Supreme Court has also opted to dif- fer with the holding in Bishop by the Nebraska Supreme Court. In Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121 (1985), a case in which the defendants were charged with multiple traffic violations and driving under the in- fluence for which the aggregate penalties could exceed 180 days in jail. The New Mexico Court said that when you were looking at ‘‘the penalty’’ this meant the aggregate penaity. When exposed to confinement over six months, a defendant is entitled to a jury trial. Emphasis supplied. This is very much like the Bishop case with the mul- tiple misdemeanor Counts. But with the result being a jury trial because of the aggregate penalties. Whereas the Nebraska Supreme Court in Bishop granted a jury trial on only the one count and should be required to grant a jury trial on all counts because all stemed from one act, transac- tion or occurence. ° CONCLUSION Arguing from the premises that the Court would no longer quarrel with the proposition that a waiver or a jury trial must be express and intelligent. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). The Waiver can not be presumed from a silent record. State v. Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985). That a jury trial must be provided for serious offenses i.e., when the penalty can be in excess of six months. Baldwin v. New York, 339 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Then too, if the possible penalty at the commencement of trial could exceed 6 months, even though the Court as- sessed a penalty of only 60 days and a fine. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In keeping also with the position opposing the Ne- braska Court in Bishop, is Codispoti where you looked to the aggregate penalty for the various contempts even though one contempt carried a sentence in excess of 5 months. Because of the differences among the various Courts, we need a resolution of the problem of the meaning of the term penalty. Does it mean all crimes in the aggregate as in the Vallejos case? Or is Nebraska right in saying in the Bishop case that it means only the case with the penalty in excess of 6 months and not all penalties combined which could exceed 1 year and 14 days. If there is merit in the subjective objective analysis of Haar, how can Nebraska in Bishop use the objective analy- sis for the resisting arrest part of the crime and subjective 10 test when all three offenses from one act, transaction or occurrence are examined to determine which part thereof is entitled to a jury trial and which part a trial to the Court. Again as said in Haar we need the United States Su- preme Court to speak on this issue. Hopefully to uphold the right to a jury trial. The jury is the cornerstone of the difference between this Country and so many of the autocratic societies. We ask this Court to issue a Writ of Certiorari to re- view the judgment of the Supreme Court of Nebraska. Respectfully submitted, Ciype F., Starretrr P. O. Box 848 Merit Bldg. MeCook, NE 69001 (308) 345-1780 Attorney for Petitioner App. 1 APPENDIX Order of June 3, 1987 Motion for rehearing of judgement of the Supreme Court of the State of Nebraska of January 16, 1987. Over- ruled June 3, 1987, stay of imposition of sentence entered in District Court of Red Willow County, Nebraska, June 15, 1987. Opinion of Nebraska Supreme Court Boslaugh, J. The defendant was found guilty of driving while un- der the influence (count I), refusing a chemical test (count II), and resisting arrest (count III). On count I he was fined $250.00 and sentenced 7 days in jail, and his operator’s license was revoked for 6 months; on count II he was fined $200.00 and sentenced to 7 days in jail, the sentences to run concurrently; and on count III he was fined $250.00. He was found not guilty of leaving the scene of a property damage accident (count IV). The District Court affirmed the convictions and sen- tences. This appeal followed. The incident which led to the convictions occurred on December 22, 1984. On that evening, at approximate- ly 8:50, Officer Barbara McMullen was traveling south on U.S. Highway 83, near McCook, Nebraska, when she observed the defendant’s vehicle turn north onto the high- way. The officer then observed the vehicle swerve from the roadway onto the shoulder of the road several times, heard the sound of metal on metal, and saw the vehicle ‘come off of a highway steel reflector post’’ and con- App. 2 tinue down on the grass and snow. The officer turned her vehicle around, activated the red lights, and began to fol- low the defendant’s vehicle. While she followed, the de- fendant’s vehicle twice swerved into the oncoming traffic lane. The officer activated her police siren and observed the defendant drive into the oncoming lane for 250 feet and then turn into a farmyard. The officer followed the defendant into the farmyard and approached the defendant as he stepped out of his vehicle. She asked to see his driver’s license, and the de- fendant handed her a handful of papers, from which she located a Colorado license. As they talked, the officer noticed a strong odor of alcohol, that the defendant held onto the car, and that he had ‘‘extreme difficulty’’ stand- ing without holding onto something. His face was very red, and his eyes were bloodshot. His speech was blurred and hard to understand. He was having difficulty under- standing questions. The defendant was asked to submit to a preliminary test but refused to do so. At that time a second officer, Sgt. Rick Stalder, ar- rived. After he was apprised of the situation, Sergeant Stalder informed the defendant that he was under arrest and had to accompany the officers to the station. The de- fendant refused to leave his property, got into his vehicle, and attempted to shut door. He then held on to the door jamb with one hand and the steering wheel with the other. Officer McMullen testified she pulled his fingers from the steering wheel with ‘‘a great deal of effort,’’ and Sergeant Stalder pulled him out of the car. Once out of the car, the defendant ‘‘went limp and let himself fall to the ground,’’ and the officers were required to expend App. 3 ‘‘a good deal of effort’’ to handcuff him. When the de- fendant refused to get up, he was pulled up by the officer and forcibly placed in the patrol car. The defendant’s car keys remained in the ignition during the struggle. The officers’ testimony as to the circumstances of the arrest was not disputed. En route to the station, the defendant complained of an injury to his hand and asked to be taken to the hospital. Officer McMullen communicated this request to Sergeant Stalder, who advised her to proceed to the station. Once there, several people examined the defendant’s hand while Officer MeMullen read the informed consent form to the defendant and asked him to take a breath test. The de- fendant refused to sign the forms or take the test. The defendant was then transported to the hospital, where he again refused to submit to a chemical test, and also refused treatment of his hand. He was taken back to the station and placed in jail. About 1 hour later he was taken back to the hospital and treated. At trial the State presented the officers’ testimony and rested. The defendant presented several witnesses who testified they had seen the defendant at various times on the day of| his arrest and that he appeared not to be intoxicated. The defendant first assigns as crror the trial court’s denial of his motion to suppress all evidence obtained after the defendant was stopped. It is the defendant’s position that suppression was required because the officers failed to give the defendant the Miranda warnings when he was arrested. This condition is without merit. App. 4 There is no requirement in this jurisdiction that Mi- randa warnings be given prior to a request to submit to a chemical test of blood, breath, or urine. State v. Klingel- huefer, 222 Neb. 219, 382 N.W.2d 366 (1986); Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986); Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973). In ad- dition, under the implied consent law, a driver is not en- titled to consult with an attorney, nor is a delay in the test required should a driver request to consult with an at- torney. Fulmer, supra. Evidence. obtained in the implied consent context is not testimonial or communicative and does not fall within the privilege against self-incrimination. Fulmer, supra. See also, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The defendant next contends the county court erred in finding that the offiers properly entered the defendant’s property without a warrant. The defendant argues that the officers should have obtained a warrant for his arrest before entering his property. This contention is not sup- ported by the facts or the law. Neb. Rev. Stat. § 209-404.02 (Reissue 1985) provides for warrantless arrest if an officer has reasonable cause to believe a person has committed (2) A misdemeanor, and the officer has reasonable cause to believe that such a person either (a) will not be apprehended unless immediately arrested; ... (c) may destroy or conceal evidence of the commission of such misdemeanor; or (d) has committed the misde- meanor in the presence of the officer. Probable cause for a warrantless arrest exists when, ‘at the time of the arrest, the officer had knowledge of the facts and circumstances based on reasonably trustworthy App. 5 information which: was sufficient to warrant a prudent man in believing the defendant had committed or was commit- ting an offense.’’ State v. Evans, ante p. 64, 67, 395 N.W.2d 563, 506-67 (1986) (citing State v. Ware, 219 Neb. 094, 365 N.W.2d 418 (1985)). See, also, State v. Tipton, 206 Neb. 731, 294 N.W.2d 869 (1980). The officers clearly had probable cause to arrest the defendant. Officer McMullen saw the defendant drive er- ratically, observed him drive over a reflector post, and observed that the defendant appeared to be intoxicated. This was sufficient cause to support the officer’s belief the defendant had committed a misdemeanor in her pres- ence: driving while intoxicated. Further, the delay caused by obtaining a warrant could have resulted in the destruc- tion of evidence: the metabolism of the alcohol in the de- fendant’s body. See State v. Hilligan, 222 Neb. 866, 387 N.W.2d 698 (1986) ; Schmerber v. California, supra. The warrantless arrest was not invalid because it oc- curred on the defendant’s property. In State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978), we held that a war- rantless entry is valid if the police officer enters under exigent circumstances such as hot pursuit or the imminent destruction of evidence. This hold was grounded on Unit- ed States v. Santana, 427 U.S. 38, 96, S. Ct. 2406, 49 L. Ed. 2d 300 (1976). In Santana the U.S. Supreme Court held that a suspect may not defeat a warrantless arrest which has been set in motion in a public place upon probable cause by the expedient of escaping to a private place. The arrest in Santana occurred in the vestibule of the accused’s home. The defendant contends that several recent Supreme Court cases cast doubt on the continued validity of our App. 6 holding in Penas. The cases cited are not applicable here because they involved warrantless arrests in a home in the absence of exigent circumstances. The defendant in this case was arrested in his farmyard after the arresting of- ficer had actively pursued him on the highway for several minutes, with red lights flashing and the siren activated. k'urther, evidence of the defendant’s intoxication would have been lost had the officers waited to obtain an arrest warrant. ‘These facts constituted exigent circumstances which justified the warrantless entry onto the defendant’s property. The defendant next assigns as error the county court’s overruling of his motion for a jury trial. The defendant contends he should have been granted a jury trial on each charge. The defendant was arraigned on January 17, 1985. He was represented by counsel and informed by the court of his right to a jury trial. Pleas of not guilty were en- tered and a hearing on motions set for February 14, 1985. A motion for a jury trial was filed and bears a hand- written notation “hand delivered 2-6-85.’’ It is signed by the defendant’s attorney. The trial court denied the mo- tion as untimely. The rules of the county court of the 14th Judicial Dis- triet of Nebraska (rev. 1984) were introduced into evidence and appear in the record. Rule 25 provides that all de- mands for a jury trial in misdemeanor cases must be made within 10 days following the entry of a plea of not guilty. The rule draws no distinction between jury trials provided for by statute and those constitutionally required. The U.S. Constitution, through the due process clause of the 14th amendment, requires the state to provide a App. 7 trial by jury whenever the 6:h amendment would so require if the case were in federal court. State v. Lynch, 223 Neb. 849, 394, N.W.2d 651 (1986). A jury trial is not constitu- tionally required in every criminal case, but must be pro- vided when the offense is ‘‘serious.’’ /d. A serious of- fense is one which carries a maximum penalty in excess of 6 month’s imprisoninent. Baldwin v. New York, 39 US. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970). The right to a jury trial is a personal right which may be waived by the defendant. State v. Miles, 202 Neb. 126, 274 N.W.2d 153 (1979) ; State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438 (1968), cert. denied 392 U.S. 937, 88 S. Ct. 2309, 20 L. Ed. 2d 1396. See, also, Fed. R. Crim. P. 23(a). A voluntary waiver of this right must be express and intelli- gent. State v. Miles, supra. See, also, Patton v. United States, 281 U.S. 276, 50 8S. Ct. 253, 74 L. Ed. 854 (1930). Waiver cannot be presumed from a silent record. State v. Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985). The right to a jury trial is also provided by statute. Neb. Rev. Stat. § 24-536 (Reissue 1985), provides that ‘*(e)ither party to any case in county court, except crim- inal cases arising under city or village ordinances, traffic infractions, and other infractions ... may demand a trial by jury.’’ A demand is required to invoke the statutory right to a jury trial. State v. Vernon, 218 Neb. 539, 356 N.W.2d 887 (1984). A failure to file a timely request in accordance with the rules of court constitutes a waiver of the statutory right to a jury trial. Jd.