PER CURIAM:
Stephen Shawn Gapp seeks to prohibit 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. III, § 14 of the West Virginia Constitution. Gapp contends that he is entitled to a jury trial because the charges against him carry the possibility of incarceration and substantial fines.
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.
Article III, § 14 of the West Virginia Constitution provides, in pertinent part: "Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men . . ."
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 § 61-6-1b(a) (1987). Both West Virginia Code §§ 61-2-9(c) and 61-5-17 are misdemeanors and may be punished by up to one year's incarceration. The charges were filed in municipal court, and the trial was scheduled for May 11, 1989.
The petitioner was also charged with violating corresponding provisions of the Moorefield City Code which provide for the same penalties as State law.
West Virginia Code § 61-6-1b(a) is a misdemeanor and punishable by a fine not to exceed one hundred dollars.
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.
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
one, 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. 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.
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. III, § 14 of the West Virginia Constitution.
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.