LARRY DEAN WINCHEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant's knowing, voluntary, and intelligent waiver of jury trial must affirmatively appear in the record, and absent a written waiver, the court must inquire of the defendant personally.
Appellant was charged with attempted robbery and possession of a controlled substance. His attorney orally waived a jury trial without the appellant p…
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GRIMES, Judge.
This case concerns the waiver of appellant’s right to a jury trial.
Appellant was charged with attempted robbery with a weapon and possession of a controlled substance. At the opening of trial, appellant was not present in the courtroom. The following colloquy occurred:
MR. FOGLEMAN [State Attorney]: I ASK THAT THE DEFENDANT BE SEATED AT DEFENSE TABLE.
MR. BRANNING [Defense Attorney]: I AM SORRY. I WILL GET HIM. I APOLOGIZE FOR THE DELAY.
THE COURT: MR. BRANNING, YOU HAVE WAIVED A JURY IN THIS CASE, IS THAT CORRECT?
MR. BRANNING: YES.
THE COURT: MR. FOGLEMAN, HAVE YOU AGREED TO THAT?
MR. FOGLEMAN: YES, YOUR HONOR, I HAVE.
Upon his return, the court did not directly question appellant as to whether he understood his right to a jury trial and whether he voluntarily waived that right. Appellant did not execute a written waiver of his right to jury trial. Shortly thereafter, he entered a plea of nolo contendere to the possession charge. He was then found guilty of attempted robbery at the nonjury trial.
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). Absent a written waiver, where the court does not inquire of the defendant personally concerning whether he understands his right to jury trial and whether he has voluntarily agreed to waive that right, the defendant is entitled to reversal of his nonjury trial conviction. Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983); see also Otis v. State, 444 So. 2d 1177 (Fla. 2d DCA 1984); Fla.R.Crim.P. 3.260. Here, appellant was not present at the time of the oral waiver, he did not state his concurrence with the action of his trial counsel, and he did not sign a written waiver. Thus, appellant did not voluntarily waive his right to trial by jury.
We hereby reverse appellant’s conviction of attempted robbery and remand for further proceedings.
RYDER, C.J., and CAMPBELL, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shuler v. State, 463 So. 2d 464 (Fla. 2d DCA 1985)…r Florida Rule of Criminal Procedure 3.260, and the trial court has failed to inquire of the defendant personally, in open court, to ascertain that he has knowingly, intelligently, and voluntarily waived his right to trial by jury. Winchel v. State, 456 So. 2d 1277 (Fla. 2d DCA 1984); Hurd v. State, 440 So. 2d 691 (Fla. 1st DCA 1983); Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983); Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978). [*465] In the instant case, the re…
Authorities Cited
- Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983)
- Johnson v. State, 411 So. 2d 1023 (Fla. 2d DCA 1982)
- Otis v. State, 444 So. 2d 1177 (Fla. 2d DCA 1984)