LUIS VIGGIANI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Viggiani was convicted of aggravated battery, aggravated assault, and unlawful possession of a weapon after a non-jury trial. The Florida appellate court reversed his conviction, finding that his purported waiver of the right to jury trial was ineffective because the record did not demonstrate he intelligently, freely, and voluntarily waived this constitutional right.
Viggiani did not effectively waive his right to trial by jury. The proper test requires that the defendant intelligently, freely, and voluntarily waive the right at the time of signing. The record presented was insufficient to demonstrate such an effective waiver of a constitutionally guaranteed right.
[1] A defendant's waiver of the right to a jury trial must be intelligent, free, and voluntary at the time the waiver is made.
[2] A written waiver of the right to a jury trial, even if signed by the defendant, is insufficient to demonstrate an effective waiver if the record is silent as to what prom…
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Join FLexlaw to unlock all legal intelligence“the proper test is whether the defendant intelligently, freely, and voluntarily waived his right to trial by jury at the time he affixed his signature to the information”
Establishes the legal standard for evaluating jury trial waivers
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Join FLexlaw to unlock all legal intelligenceViggiani was tried without a jury. A stamp purporting to waive jury trial rights was impressed on the original information with Viggiani's alleged sig…
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NESBITT, Judge.
After a non-jury trial, Viggiani was convicted of aggravated battery, aggravated assault, and unlawful possession of a weapon in connection with both.
The question before us is whether Viggia-ni effectively waived his right to trial by jury. Finding that he did not, we reverse and remand for a new trial.
From the record, we find that a stamp purporting to waive the right to trial by jury had been impressed upon the face of the original information containing a signature block which Viggiani allegedly signed.
The record is otherwise silent as to what, if anything, prompted Viggiani to sign the waiver. The state attempts to support the judgment by reference to the transcript where, at the commencement of the trial, counsel were called to the ease as a “non-jury case” and defense counsel did not voice objections or make any attempt to claim Viggiani’s entitlement to a jury trial.
We reject such an argument in that the proper test is whether the defendant intelligently, freely, and voluntarily waived his right to trial by jury at the time he affixed his signature to the information. Durcan v. State, 383 So. 2d 248 (Fla.3d DCA 1980) (see also opinion of Baskin, J. dissenting on other grounds); Tosta v. State, 362 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).
The showing presented in this case is not sufficient to demonstrate an effective waiver of a constitutionally guaranteed right. Art. I, § 22, Fla.Const. Florida Rule of Criminal Procedure 3.260 provides that: “[a] defendant may in writing waive a jury trial with the consent of the State.” In State v. Garcia, 229 So. 2d 236 (Fla.1969), the Supreme Court, in construing a predecessor rule, held that the rule, being procedural in nature, preempted any statutory scheme governing the waiver of trial by jury. The problem is that the rule does not prescribe the manner and means of procuring the written waiver.
However, in nearly all of the cases decided following State v. Garcia, supra, the minimal common denominator, which has been held sufficient to constitute a valid and effective waiver, was the defendant’s signature accomplished in open court and incorporated either in the transcript of the proceedings or otherwise made part of the record. Russell v. State, 342 So. 2d 96 (Fla.3d DCA 1977); Kinser v. State, 291 So. 2d 80 (Fla.3d DCA), cert. denied, 297 So. 2d 832 (Fla.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975); Quartz v. State, 258 So. 2d 283 (Fla.3d DCA), cert. denied, 263 So. 2d 825 (Fla.1972).
In Quartz v. State, supra, we acknowledged the better practice was for the trial court to interrogate a defendant so as to satisfy itself that the defendant was fully apprised as to his entitlement to a jury trial and to ensure that the right was intelligently and voluntarily relinquished. We agree with that observation but also observe that such interrogation or colloquy may be conducted by the state attorney or defense counsel in open court.
The defendant’s judgment of conviction is reversed and remanded for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983)…NSE COUNSEL: We are ready for trial. The entire record on the waiver question consists of that colloquy and the signed written waiver on the information. On these facts, the present case is virtually [*249] indistinguishable from Viggiani v. State, 390 So. 2d 147 (Fla. 3d DCA 1980), rev. denied, 402 So. 2d 613 (Fla.1981). In Viggiani v. State, we held that a defendant did not effectively waive his right to trial by jury where the minimal requirements for a valid and effective waiver were not met, i.e., that…1 / 2
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Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)…tate, 323 So. 2d 598 (Fla.3d DCA 1975). As in the case of the waiver of any constitutional right, the waiver of trial by jury must be shown to have been knowingly and intelligently made. State v. Garcia, 229 So. 2d 236 (Fla.1969); Viggiani v. State, 390 So. 2d 147 (Fla.3d DCA 1980); Tosta v. State, 352 So. 2d 526 (Fla.4th DCA 1977); Molfetas v. State, supra. The existence of a written waiver does not, ipso facto, show that a defendant freely, intelligently and voluntarily waived his right to trial by jury. Vi…
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Sessums v. State, 404 So. 2d 1074 (Fla. 3d DCA 1981)…the better practice is for a trial court to interrogate a defendant so as to satisfy itself that the defendant is fully apprised of his right to a jury trial and that the waiver of that right is made intelligently and voluntarily, Viggiani v. State, 390 So. 2d 147 (Fla.3d DCA 1980), rev. granted, 402 So. 2d 613 (Fla.1981); Quartz v. State, 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 tr…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)
- Tubbs v. Henderson, 420 U.S. 972 (U.S. 1975)
- Kinser v. Florida, 420 U.S. 972 (U.S. 1975)
- Quartz v. State, 258 So. 2d 283 (Fla. 3d DCA 1972)
- Russell v. State, 342 So. 2d 96 (Fla. 3d DCA 1977)
- Kinser v. State, 291 So. 2d 80 (Fla. 3d DCA 1974)
- Molfetas v. State, 323 So. 2d 598 (Fla. 3d DCA 1975)
- Durcan v. State, 383 So. 2d 248 (Fla. 3d DCA 1980)
- State of Fla. ex rel. Carlyle L. Harrison v. Honorable Reubin O'D. Askew, 263 So. 2d 825 (Fla. 1972)
- Bergiette B. Rine v. Rine, 263 So. 2d 825 (Fla. 1972)