LISA PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lisa Parker appeals her convictions after a non-jury trial, arguing the trial court failed to adequately inquire into her jury trial waiver and that her sentence illegally stacked community control and probation without written reasons for departing from sentencing guidelines. The court affirmed the convictions but vacated and remanded for resentencing.
The written waiver executed in compliance with the rule is legally sufficient to allow a non-jury trial despite the absence of oral inquiry. If the waiver was not in fact freely and knowingly given, the appropriate relief is through a Rule 3.850 post-conviction motion. However, the imposition of both community control and probation without written reasons for departure from sentencing guidelines violates the sentencing guidelines and requires resentencing.
[1] A written waiver of the right to a jury trial, executed in conformity with rule, is legally sufficient to allow a court to conduct a non-jury trial, even without an expli…
[2] A defendant challenging the voluntariness and knowing nature of a jury trial waiver, despite having signed a written waiver, must pursue relief through a motion for post-…
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Join FLexlaw to unlock all legal intelligence“the written waiver executed by Parker in conformity with the rule is legally sufficient to allow the court to conduct a non-jury trial”
Establishes that a written waiver complying with Florida Rule of Criminal Procedure 3.260 is sufficient without oral inquiry
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Join FLexlaw to unlock all legal intelligenceParker signed a written waiver of jury trial conforming to Florida Rule of Criminal Procedure 3.260. The trial court accepted the signed waiver withou…
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PER CURIAM.
On direct appeal, Lisa Parker argues that her convictions after a non-jury trial should be reversed because the record does not support a waiver of the right to a jury trial. Citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), she contends that the trial judge had an obligation to ascertain in open court whether the waiver was voluntary and intelligent. Parker also challenges her sentence as illegal, even if the convictions are upheld.
In conformity with Florida Rule of Criminal Procedure 3.260, Parker signed a waiver of jury trial, which stated in part, “I do now freely and voluntarily waive my right to a trial by jury.” This ease differs significantly, therefore, from the situation in Dumas v. State, 439 So. 2d 246, 249 (Fla. 3d DCA 1983) (en banc), review denied, 462 So. 2d 1105 (Fla.1985), where the record was silent with regard to the willingness or understanding with which the plea was entered, and Florida Rule of Criminal Procedure 3.260 was not followed.
The trial court made no inquiry concerning the waiver of jury trial when it accepted the signed waiver. Parker now argues that, in light of Tucker v. State, 559 So. 2d 218 (Fla.1990) (indicating that oral inquiry in addition to a written waiver is the better practice) and Harringer v. State, 566 So. 2d 893, 894 (Fla. 4th DCA 1990) (holding that absent a written waiver, “it must appear in the record that the trial court inquired”), the trial court’s failure to make any inquiry to establish that the waiver was given freely and knowingly requires reversal as a matter of law regardless of whether the waiver was in fact coerced and uninformed. We decline to give such broad effect to the supreme court’s opinion in Tucker, concluding that the written waiver executed by Parker in conformity with the rule is legally sufficient to allow the court to conduct a non-jury trial. See Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983) (en banc), review denied, 462 So. 2d 1105 (Fla.1985). As the state has pointed out in its answer brief, if Parker’s waiver was not in fact freely and knowingly given, the appropriate mode of relief is by a Rule 3.850 motion for post-conviction relief. We affirm the convictions.
Parker was sentenced to one year of community control followed by three years of probation, a condition of which was serving sixty days in the county jail. See Fla. R.Crim.P. 3.988(j). The stacking of probation and community control is proper. Skeens v. State, 556 So. 2d 1113 (Fla.1990); State v. Reed, 557 So. 2d 33 (Fla.1990). However, “when the presumptive guideline sentence directs community control or incarceration, the imposition of both represents a departure from the sentencing guidelines, requiring proper written reasons for the departure.” State v. VanKooten, 522 So. 2d 830, 830-31 (Fla.1988). Neither the fact that incarceration was a condition of probation, nor the fact that the length of the sentence was within the maximum allowed by general law, cures the illegal sentence. See State v. Davis, 630 So. 2d 1059 (Fla.1994) (disapproving Distefano v. State, 526 So. 2d 110 (Fla. 1st DCA 1988); Tillman v. State, 555 So. 2d 940 (Fla. 5th DCA 1990); Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988)).
The imposition of community control and incarceration without written reasons for departing from the sentencing guidelines violates VanKooten and Davis. Parker’s sentence is vacated and the case is remanded for resentencing within the guidelines. See Pope v. State, 561 So. 2d 554 (Fla.1990); Ree v. State, 565 So. 2d 1329 (Fla.1990).
ZEHMER, C.J., and KAHN and BENTON, JJ., concur.
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State v. Upton, 658 So. 2d 86 (Fla. 1995)…or the waiver to be effective. See Williams v. State, 440 So. 2d 1290, 1291 (Fla. 4th DCA 1983), review denied, 450 So. 2d 489 (Fla.1984). When the record contains a written waiver signed by the defendant, the waiver will be upheld. Parker v. State, 636 So. 2d 794 (Fla. 1st DCA), review denied, 642 So. 2d 747 (Fla.1994); Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983) (en banc), review denied, 462 So. 2d 1105 (Fla.1985). While conceding that rule 3.260 “arguably requires” the waiver to be signed by the def…
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Ezekiel Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994)…itution center. Mandatory residency at a probation and restitution center, even as a condition of probation, is “incarceration” within the meaning of the sentencing guidelines.2 See Solis v. State, 622 So. 2d 584 (Fla. 2d DCA 1993); Parker v. State, 636 So. 2d 794 (Fla. 1st DCA 1994). Thus, Peterson’s sentence exceeded the permitted guideline sentence by one year. Contrary to Florida Rule of Criminal Procedure 3.701(d)(ll), there was no written statement delineating the reasons for the departure. From the rec…
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Parsons v. State (Fla. 3d DCA 2023)…1st DCA 2018); State v. Upton, 658 So. 2d 86, 87 (Fla. 1995), approved sub nom. Johnson v. State, 994 So. 2d 960 (Fla. 2008) ("When the record contains a written waiver signed by the defendant, the waiver will be upheld." (citing to Parker v. State, 636 So. 2d 794 (Fla. 1st DCA), review denied, 642 So. 2d 747 (Fla.1994); Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983) (en banc), review denied, 462 So. 2d 1105 (Fla. 1985))).…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Tucker v. State, 559 So. 2d 218 (Fla. 1990)
- State v. Davis, 630 So. 2d 1059 (Fla. 1994)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983)
- Dumas v. State, 462 So. 2d 1105 (Fla. 1985)
- Keidrick Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988)