LEE SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Lee Smith appeals his conviction following a bench trial for second-degree murder with a firearm, attempted second-degree murder, and possession of a firearm in the commission of a felony. The court upholds Smith's jury waiver and his convictions for murder and attempted murder, but reverses the conviction for firearm possession as duplicative of the murder charge.
The jury waiver was valid and effective; Smith freely, intelligently, and voluntarily waived his right to trial by jury as demonstrated by the trial court colloquy. However, the conviction for possession of a firearm in the commission of a felony is duplicative and cannot stand in addition to the conviction for second-degree murder with a firearm.
[1] A defendant's waiver of the right to a jury trial, even when unrepresented by counsel, can be valid if the record affirmatively demonstrates the defendant was fully aware…
[2] A trial court's acceptance of a jury waiver, without an explicit statement of finding, is sufficient to demonstrate its determination that the waiver was effective and kn…
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Join FLexlaw to unlock all legal intelligence“freely, intelligently and voluntarily waived his right to trial by jury”
Establishes the legal standard for valid jury waiver and the court's finding that Smith met this standard
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Join FLexlaw to unlock all legal intelligenceSmith was tried and convicted for crimes occurring on October 31, 1983. His initial jury convictions were reversed on appeal in 1986. At his retrial, …
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SCHWARTZ, Chief Judge.
Subsequent to the reversal of his convictions after a jury trial for crimes occurring on October 31, 1983, Smith v. State, 496 So. 2d 983 (Fla. 3d DCA 1986), the defendant, unrepresented by an attorney, waived a jury and went to a bench trial. He was again convicted of second degree murder with a firearm, attempted second degree murder and the possession of a firearm in the commission of the second degree murder and again appeals.
I
The appellant’s first point contends that his jury waiver was invalid. We find to the contrary. The presumption of an ineffective waiver which arises because Smith was counselless at the time, see Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981), review denied, 418 So. 2d 1280 (Fla. 1982), was thoroughly dissipated on this record by a lengthy colloquy between the defendant and the trial judge, in which Smith was by far the more active participant, and which affirmatively demonstrated that he was thoroughly conversant — indeed, quite amazingly so — with the vital aspects of his or any decision to forego a jury. Enrique, 408 So. 2d at 637 (defendant should be told “that he could participate in the selection of the jury [and] that any jury verdict must be unanimous”). In sum, it clearly appears that Smith “freely, intelligently and voluntarily waived his right to trial by jury.” Enrique, 408 So. 2d at 637.
Moreover, contrary to the defendant’s present contention, it is not necessary that the trial court make an explicit determination of an effective and knowledgeable waiver at the proceedings below. Under these circumstances, the lower court’s acceptance of the waiver sufficiently demonstrated its finding to that effect. See Peterson v. State, 382 So. 2d 701 (Fla. 1980) (admission of confession equivalent to express finding that confession was freely and voluntarily made).
II
We do agree that the conviction for possession of a firearm in the commission of a felony is duplicitous of and may not be permitted to stand in addition to the conviction of the same substantive crime, in this case, second degree murder with a firearm. We have specifically so held in Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988), in which we determined that this result is mandated by Carawan v. State, 515 So. 2d 161 (Fla.1987). See Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989) (Cowart, J., concurring specially).
Moreover, we reject the state’s argument that the amendment to section 775.021(4), Florida Statutes (1987), contained in Chapter 88-131, section 7, Laws of Florida, which was effective July 1, 1988, is indicative of a contrary previous legislative intent and therefore overrules Carawan — even as to crimes, like this one, which occurred before the effective date of the statute and indeed before Carawan itself. We agree with the First District decision in Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988) that such a claim is unacceptably contrary to the ex post facto clauses of the Florida and federal constitutions.
The cause is therefore remanded with directions to vacate the possession conviction and for resentencing accordingly. The judgments below are otherwise affirmed.
AFFIRMED IN PART, REVERSED IN PART.
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Citator
Cited By (13 total)
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Gonzalez v. State, 571 So. 2d 1346 (Fla. 3d DCA 1990)…ed and never sought to question further any of the jurors. In light of Gonzalez’s consent and the lack of counsel’s meaningful objection, we conclude that Ramon Gonzalez was not deprived of his right to a fair and impartial jury. See Smith v. State, 539 So. 2d 601 (Fla. 3d DCA 1989) (lengthy colloquy between defendant and trial judge in which defendant affirmatively demonstrated his knowledge of decision to forego jury constituted a valid waiver). “BAD MAN” REFERENCES IN TAPE TRANSCRIPT Appellants contend t…
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Eugenio Sarduy v. State, 540 So. 2d 203 (Fla. 3d DCA 1989)…trospective application would disadvantage Sarduy as he would receive a second conviction and a greater sentence under the new statute which would thus violate the ex post facto clauses of the Florida and United States constitutions. Smith v. State, 539 So. 2d 601 (Fla. 3d DCA 1989); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988). Reversed and remanded for a new trial. . Second degree murder is "[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evinci…
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Goodman v. State, 567 So. 2d 37 (Fla. 3d DCA 1990)…d DCA 1989); Bishop v. State, 438 So. 2d 86 (Fla. 4th DCA 1983); § 39.12(7) Florida Statutes (1987). And as to the second point, the state concedes error on the following authority, Ambroa v. State, 547 So. 2d 294 (Fla. 3d DCA 1989); Smith v. State, 539 So. 2d 601 (Fla. 3d DCA 1989); Henderson v. State, 526 So. 2d 743 (Fla. 3d DCA 1988), and remand the matter to the trial court for correction of the sentence on the possession conviction. Affirmed in part, reversed in part with directions.…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988)
- Anton Kevin Peterson v. State, 382 So. 2d 701 (Fla. 1980)
- Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)
- Health Care & Ret. Corp. OF Am. v. Dep't of Health & Rehabilitative Servs., 526 So. 2d 743 (Fla. 1st DCA 1988)
- Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)
- Smith v. State, 496 So. 2d 983 (Fla. 3d DCA 1986)