ANNE POWERS, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Anne Powers was convicted in county court of offering to commit prostitution in violation of Florida state law. The Third District Court of Appeal issued a writ of certiorari to quash the conviction, holding that Powers was entitled to a jury trial, had properly demanded one, and did not validly waive that right, as her attorney's oral waiver in open court was insufficient without written consent and the defendant's concurrence.
Powers was entitled to a jury trial because Section 932.61, Florida Statutes, confers a statutory right to a jury trial when a violation of a municipal ordinance is also a violation of state law. The attorney's oral waiver of the jury trial was invalid because there was no written waiver and no showing in the record of Powers' concurrence or understanding of what a jury trial waiver meant.
[1] A statutory right to a jury trial is conferred when the violation of a municipal ordinance is also a violation of state law.
[2] A defendant's waiver of a jury trial is invalid if there is no written waiver and no record evidence of the defendant's concurrence or understanding of the waiver.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant's concurrence in his counsel's waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver”
Establishes the standard for valid jury trial waiver: requires written waiver and evidence of defendant's concurrence and understanding
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Join FLexlaw to unlock all legal intelligenceAnne Powers was arrested by Miami Beach police for offering to commit prostitution in violation of Florida Statutes Section 796.07 and Miami Beach Cod…
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PEARSON, Judge.
We have been presented with a petition for writ of certiorari by Anne Powers, defendant in the county court, seeking review of the circuit court affirmance of her county court conviction for “offering to commit prost[itution] In Viol[lation] of [Section] 796.07, [Florida Statutes (1977)].” The petition alleges a departure from the essential requirements of law by the circuit court’s affirmance of her conviction on appeal, where the record clearly shows that she (1) was entitled to a jury trial, (2) had demanded a jury trial and (3) had not waived her right to a jury trial under the provisions of Florida Rules of Criminal Procedure 3.251 and 3.260.1
The response of the State to the petition is: first, that the record shows a violation of a municipal ordinance and, therefore, the petitioner had no right to a jury trial and; second, that the petitioner’s attorney in open court waived a jury trial and requested a non-jury trial and, therefore, the petitioner is barred from her assertion of a departure from the essential requirements of law.
The record shows that the petitioner was arrested for the above-mentioned violation of the Florida Statutes by police officers of the City of Miami Beach, and the State urges that we may take judicial notice of the fact that the City of Miami Beach has charter authority to enact an ordinance which would make the violation of the Florida Statutes violations also of municipal ordinances. We have no objection to taking judicial notice of the fact that the petitioner was also in violation of a municipal ordinance; however, we think we are bound by the record which shows that the petitioner was arrested on a charge of “offering to commit prost. in Viol. of F.S. 796.07 . . . [and] ... in Viol. of Sec. 25-88 of the Code of Miami Beach.” It has been determined that Section 932.61, Florida Statutes (1977), confers a statutory right to a jury trial when the violation of a municipal ordinance is also a violation of state law. City of Tampa v. Ippolito, 360 So. 2d 1316 (Fla. 2d DCA 1978).
Turning to the State’s suggestion that the petitioner is barred from claiming a departure from the essential requirements of law because she waived her right to a jury trial in the trial court, we find this was fully disposed of in Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), where the court held: “ . . . under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant’s concurrence in his counsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver, [citing authorities]” The circumstances in Tos- ta appear to be identical to those in the present case. See also Molfetas v. State, 323 So. 2d 598 (Fla. 3d DCA 1975).
We, therefore, issue the writ and quash the circuit court’s order of affirmance with directions for further proceedings in accordance with this opinion.
. “Rule 3.251 Right to Trial by Jury
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury in the county where the crime was committed.”
“Rule 3.260. Waiver of Jury Trial
A defendant may in writing waive a jury with the consent of the State.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Whirley v. State, 450 So. 2d 836 (Fla. 1984)…PER CURIAM. This cause, State v. Whirley, 421 So. 2d 555 (Fla. 2d DCA 1982), is before us as conflicting with Powers v. State, 370 So. 2d 854 (Fla. 3d DCA), review denied, 379 So. 2d 209 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Petitioner was arrested on December 30, 1980, and charged with a violation of section 316.193(1), Florida Statutes (1979), and section 39-…
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Sessums v. State, 404 So. 2d 1074 (Fla. 3d DCA 1981)…e, 258 So. 2d 283 (Fla.3d DCA 1972), cert. denied, 263 So. 2d 825 (Fla.1972), the only requirements of Florida Rule of Criminal Procedure 3.260 providing for waiver of jury trial, are that a waiver of a jury trial be in writing, see Powers v. State, 370 So. 2d 854 (Fla.3d DCA 1979), cert. denied, 379 So. 2d 209 (Fla.1979); Tosta [*1076] v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978); Molfetas v. State, 323 So. 2d 598 (Fla.3d DCA 1975), and that the State consent, see Sta…
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Hurd v. State, 440 So. 2d 691 (Fla. 1st DCA 1983)…the record. A defendant’s knowing, voluntary, and intelligent waiver of jury trial must affirmatively appear in the record. Johnson v. State, 411 So. 2d 1023 (Fla. 2d DCA 1982); Viggiani v. State, 390 So. 2d 147 (Fla. 3d DCA 1980); Powers v. State, 370 So. 2d 854 (Fla. 3d DCA), cert. denied, 379 So. 2d 209 (Fla.1979); Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978). Appellee’s contention that appellants waived a jury trial in the instant case because defense counse…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977)
- Molfetas v. State, 323 So. 2d 598 (Fla. 3d DCA 1975)
- City OF Tampa v. Emilio Ippolito, 360 So. 2d 1316 (Fla. 2d DCA 1978)