DANIEL GAMBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Waiver Of Rights cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal from a conviction in a criminal case.
Appellant was being tried for various nar-coties-related charges when one of the jurors became incapacitated and was excused. This left only five jurors to decide appellant’s case. The case proceeded to verdict upon receiving a waiver of appellant’s rights by his lawyer. The accused was not informed by the court of his constitutionally mandated right to a six-person jury, nor was he consulted as to his wishes in that regard. Art. 1 § 22, Fla. Const.; Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). That was error and a new trial is the only remedy. See Blair v. State, 667 So. 2d 834 (Fla. 4th DCA), rev. granted, 680 So. 2d 421 (Fla.1996).
W. SHARP, J., concurs.
PETERSON, C.J., concurs specially, with opinion.
PETERSON, Chief Judge,
concurring.
I write only to note the lesson to be learned here is that waiver of a full member jury should only be accepted by the trial judge when given personally by a defendant who has had his constitutional rights explained to him by his attorney or the court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Johnson v. State, 994 So. 2d 960 (Fla. 2008)…luding that a conviction must be reversed where the record contained no written waiver and did not reflect an inquiry by the trial court that the defendant voluntarily, knowingly, and intelligently waived his right to a jury trial); Gamble v. State, 696 So. 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.…
-
Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA 1997)…, however, is subject to a harmless error analysis. Lindsey. The state must prove the defendant’s involvement with the threat by clear and convincing evidence. See Rozier v. State, 636 So. 2d 1386 (Fla. 4th DCA 1994); see, e.g., Mutcherson v. State, 696 So. 2d 420, 423 (Fla. 2d DCA 1997)(eireumstantial evidence of the defendant’s involvement in collateral crimes, i.e., his finger and palm prints on the gumball machines, the unusually large amount of change he carried in his pocket at the time of arrest, and t…
-
Shores v. State, 756 So. 2d 114 (Fla. 4th DCA 2000)…there was other evidence connecting appellant to the burglary, and his conviction was affirmed, the second district made it clear that the fingerprint evidence alone would have been insufficient for a conviction. Similarly, in Mutcherson v. State, 696 So. 2d 420 (Fla. 2d DCA 1997), the second district observed that a single fingerprint on a gumball machine which had been broken into, inside a store which had been burglarized, without more, would be insufficient to support a conviction. In that case, as in L…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ballew v. Georgia, 435 U.S. 223 (U.S. 1978)
- Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996)