JOHN SANSOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the absence of a valid waiver of the right to a jury trial necessitates a new trial.
Appellant was convicted of grand theft following a bench trial. Prior to trial, defense counsel announced an agreement for a jury-less trial, but the …
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PER CURIAM.
The appellant was convicted of grand theft following a bench trial. On appeal, he asserts error in the trial court’s failure to obtain a proper waiver of his right to trial by jury, and in the trial court’s denial of his motion for judgment of acquittal. A new trial is necessitated by the absence of a valid waiver, and we reverse on this basis only.
Prior to trial, defense counsel announced an agreement whereby the appellant would be tried without a jury with the understanding that (1) the charge would be dismissed if witnesses did not appear, and (2) no jail time would be imposed in the event of conviction. The record reflects that the appellant was not questioned concerning this arrangement, and he did not state his consent thereto either orally or in writing. At trial, the appellant voiced no objection concerning the absence of a jury. However, a defendant’s silence in court does not constitute a valid waiver of the right to a jury trial, even where such silence follows defense counsel’s oral waiver on behalf of the defendant. See Williams v. State, 521 So. 2d 268 (Fla. 2d DCA 1988); 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).
In Florida, the applicable rule provides for a defendant’s written waiver of a jury trial. See Fla.R.Crim.P. 3.260. Although a defendant’s oral waiver may suffice, it must follow a colloquy in which the court establishes that the waiver is knowingly and intelligently made. See Tucker v. State, 559 So. 2d 218 (Fla.1990). Because no such waiver was obtained, we must reverse the conviction and remand the case for a new trial. Of course, on remand, the appellant does not retain the guarantees concerning sentencing and dismissal that he obtained in his previous negotiations.
BARFIELD, MINER and MICKLE, JJ., concur.
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Johnson v. State, 994 So. 2d 960 (Fla. 2008)…. 2d 420, 420 (Fla. 5th DCA 1997) (holding that the failure to inform the defendant of his right to a six-person jury and the failure to consult the defendant as to his wishes was an error for which a new trial was the only remedy); Sansom v. State, 642 So. 2d 631, 631 (Fla. 1st DCA 1994) (finding that a new trial was necessitated by the absence of a proper waiver); Bassue v. State, 536 So. 2d 1140, 1141 (Fla. 3d DCA 1988) (reversing a conviction and sentence where there was no was inquiry made of the defenda…
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Sinkfield v. State, 681 So. 2d 838 (Fla. 4th DCA 1996)…(Fla. 4th DCA 1977) cert. denied, 366 So. 2d 885 (Fla.1978). Furthermore, the appellant’s remaining mute (during his counsel’s apparent waiver of appellant’s right to jury trial) did not constitute a valid waiver of that right. See Sansom v. State, 642 So. 2d 631 (Fla. 1st DCA 1994), and cases cited therein. The error that occurred here, which requires that the judgment be reversed and the sentence vacated, is of the type that can be avoided in the future by a closer adherence to the teachings of the supreme…
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Morris v. State, 680 So. 2d 544 (Fla. 1st DCA 1996)…ever, must conduct a colloquy that “will focus a defendant’s attention on the value of a jury trial and ... make a defendant aware of the likely consequences of the waiver.” Id. See also State v. Upton, 658 So. 2d 86, 87 (Fla.1995); Sansom v. State, 642 So. 2d 631, 631-632 (Fla. 1st DCA1994). In the instant case, the waiver of jury trial was made orally by appellant’s counsel in appellant’s presence, and appellant orally affirmed. The court, however, did not make the requisite inquiry into the knowing, inte…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tucker v. State, 559 So. 2d 218 (Fla. 1990)
- Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977)
- Cirio v. State, 440 So. 2d 650 (Fla. 2d DCA 1983)
- Williams v. State, 521 So. 2d 268 (Fla. 2d DCA 1988)