VIRGIL JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant did not validly waive his right to a jury trial because the waiver was not knowing, voluntary, and intelligent, as required by law.
Appellant was convicted of arson after a nonjury trial. Defense counsel informed the court that the appellant agreed to waive his jury trial right due…
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HOBSON, Acting Chief Judge.
Following a nonjury trial, appellant was convicted of arson and sentenced to five years imprisonment. We find that there was no valid waiver of appellant’s right to a jury trial and reverse.
Appellant was not present at the hearing on his attorney’s oral motion for continuance. Defense counsel informed the court that he had advised appellant to waive his right to jury trial because of adverse influence his record might have upon the jury. Counsel stated that appellant had agreed to waive his right to jury trial. The court accepted the representations of defense counsel and, with the State’s agreement, set the case for nonjury trial. Appellant never executed a written waiver of his right to jury trial; the court did not inquire of him personally as to whether he understood his right to jury trial and whether he had voluntarily agreed to waive that right.
A defendant’s knowing, voluntary, and intelligent waiver of jury trial must be shown affirmatively from the record below. Viggiani v. State, 390 So. 2d 147 (Fla.3d DCA 1980); Powers v. State, 370 So. 2d 854 (Fla.3d DCA 1979); cert. denied, 379 So. 2d 909 (Fla.1979); Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978).
A stipulation filed by counsel attests to the fact that appellant did not initiate the request for nonjury trial and was not present when his counsel attempted to waive that right. There is no evidence to indicate any valid waiver. Inasmuch as this issue is dispositive of the instant case, we do not address appellant’s remaining points raised on appeal.
REVERSED.
SCHEB, C. J., and DANAHY, J., concur.
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Dumas v. State, 462 So. 2d 1105 (Fla. 1985)…PER CURIAM. We originally accepted jurisdiction in this cause, reported below as Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983), on the basis of conflict with Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983), and Johnson v. State, 411 So. 2d 1023 (Fla. 2d DCA 1982). Upon further review, we find that there is no conflict because of the distinctive factual circumstances in the instant case, and, consequently, no basis for this Court to accept jurisdiction. The petition for review is denied.…
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Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983)…luntarily agreed to waive that right. No written waiver of defendant’s right to a jury trial was executed. A defendant’s knowing, voluntary, and intelligent waiver of a jury trial must be shown affirmatively from the record below. Johnson v. State, 411 So. 2d 1023 (Fla. 2d DCA 1982). In the instant case, there is no evidence to indicate a valid waiver. Accordingly, defendant’s conviction must be reversed. Johnson. See also Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1…
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Hurd v. State, 440 So. 2d 691 (Fla. 1st DCA 1983)…court also erred in conducting the trial without a jury. No waiver of the right to a jury trial appears in 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.1…
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
- Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977)
- Anne Powers v. State, 370 So. 2d 854 (Fla. 3d DCA 1979)
- Viggiani v. State, 390 So. 2d 147 (Fla. 3d DCA 1980)