JOSEPH ROTH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Joseph Roth, convicted of first-degree murder and sentenced to 25 years imprisonment, sought collateral relief arguing he could not have intelligently waived his constitutional right to trial by a twelve-person jury. The court affirmed the denial of his post-conviction relief, holding that the waiver was valid and the claim should have been raised on direct appeal.
A defendant may validly waive the right to trial by a twelve-person jury with the consent of the state and approval of the court, particularly where the state has waived the death penalty. Such a waiver claim, being a matter that could have been raised on direct appeal, is barred from collateral attack regardless of its constitutional dimension.
[1] A claim that a defendant could not have intelligently and voluntarily relinquished the right to a twelve-person jury is a matter that could have been raised on direct app…
[2] The fact that a claim is of constitutional dimension does not preclude its waiver by failure to assert it on direct appeal.
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Join FLexlaw to unlock all legal intelligence“We find this contention was a matter which could have been raised on direct appeal and is thereby unassailable in a collateral attack on a judgment.”
Establishes the procedural bar to raising jury waiver claims in post-conviction collateral attacks.
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Join FLexlaw to unlock all legal intelligenceRoth was indicted for first-degree murder in 1976. Before trial, the state announced it would not seek the death penalty. With counsel's advice, the s…
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PER CURIAM.
The defendant was indicted for the offense of first degree murder by a grand jury for the Eleventh Judicial Circuit on June 4, 1976 under Section 782.04, Florida Statutes (1973). At trial, the state announced it would not seek the death penalty in the event the defendant was convicted of first degree murder. On this representation, with the advice of his counsel, agreement by the state, and approval of the court, the defendant expressly waived his right to be tried by a twelve-person jury expressly stipulating that the case be tried by a six-person jury. He was convicted of murder in the first degree, adjudicated, and sentenced to a mandatory twenty-five-year life imprisonment. His judgment of conviction was affirmed here. Roth v. State, 359 So. 2d 881 (Fla. 3d DCA 1978), cert. denied, 367 So. 2d 1126 (Fla.1979).
The defendant then commenced this collateral attack of the judgment in the sentencing court, pursuant to Florida Rule of Criminal Procedure 3.850, claiming he could not have intelligently and voluntarily relinquished the fundamental right to be tried by a twelve-person jury. He contends his right to be tried by a twelve-person jury as provided by Section 913.10, Florida Statutes (1973) and Florida Rule of Criminal Procedure 3.270 is confirmatory of his organic right to a trial by jury of twelve persons embodied in the Sixth Amendment of the Constitution of the United States and Article I, Sections 16 and 22 of the Florida Constitution.
We find this contention was a matter which could have been raised on direct appeal and is thereby unassailable in a collateral attack on a judgment. Harvey v. State, 383 So. 2d 770 (Fla. 3d DCA 1980); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975); Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975). The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct appeal. Clark v. State, 363 So. 2d 331 (Fla.1978); Sanford v. Rubin, 237 So. 2d 134 (Fla.1970); Harvey v. State, supra.
Additionally, we find that our Supreme Court has approved a defendant’s intelligent waiver of the right to trial by jury, in a death case, with consent of the state, and approval of the court under the identical authority the defendant relies upon here. State v. Garcia, 229 So. 2d 236 (Fla.1969). It follows then that where the state waived the right to seek the death penalty, the defendant could agree, with the consent of the state, and approval of the court, to be tried by a six-person jury.
Accordingly, the order denying the defendant’s application for post judgment relief, pursuant to Florida Rule of Criminal Procedure 3.850, is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…finding that the allegations did not constitute legal grounds for relief. [*260] Nova appealed the denial of his 1981 motion, and this court, per curiam, affirmed, merely citing to Knight v. State, 394 So. 2d 997, 1001 (Fla.1981), and Roth v. State, 385 So. 2d 114, 115 (Fla. 3d DCA 1980). See Nova v. State, 414 So. 2d 629 (Fla. 3d DCA 1982). The trial court, presented with the motion which is the subject of this appeal, read our decision on Nova’s 1981 motion to mean that we had already ruled on Nova’s presen…1 / 2
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Jose Angel "Pepe" Alfonso and Javier Codecido v. State, 528 So. 2d 383 (Fla. 3d DCA 1988)…ted of a capital crime in Florida by a jury of fewer than twelve where there is a valid defense waiver of the right to a twelve-member jury. State v. Garcia, 229 So. 2d 236 (Fla.1969); Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983); Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980). In the instant case, there was no waiver. The trial court erred in forcing Alfonso and Codecido to proceed to trial with fewer jurors than they were entitled to by law.3 Alfonso also alleges fundamental error in the trial court'…
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Crawford Lee Groomes v. State, 401 So. 2d 1139 (Fla. 3d DCA 1981)…f a jury trial. This court has previously held that when the state has waived the right to seek the death penalty, the defendant could agree, with the consent of the state, and approval of the court, to be tried by a six-person jury. Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980). In Groomes’ case the waiver was in writing, Powers v. State, 370 So. 2d 854 (Fla. 3d DCA 1979), cert. denied, 379 So. 2d 209 (Fla.1979), there was consent of the state, State ex rel. Gerstein v. Baker, 339 So. 2d 271 (Fla. 3d DCA…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)
- Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)
- Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975)
- Emory Harvey v. State, 383 So. 2d 770 (Fla. 3d DCA 1980)
- Roth v. State, 359 So. 2d 881 (Fla. 3d DCA 1978)