RONALD BABB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Babb was convicted by jury on three felony counts and by the court (bench trial) on a fourth count of firearm possession by a convicted felon. The court reversed the conviction on the firearm count because there was no valid waiver of Babb's jury trial right, holding that neither a written waiver nor a proper oral colloquy establishing knowing and voluntary waiver was documented in the record.
The court reversed the conviction on the firearm possession count because no valid waiver of jury trial was documented. A waiver of this constitutional right requires either a written waiver under Florida Rule of Criminal Procedure 3.260 or an oral waiver made on the record after a colloquy from which the court finds the waiver is voluntarily, knowingly, and intelligently made. Neither occurred here.
[1] A defendant's waiver of the right to a jury trial must be made in writing with the consent of the state, or orally on the record after a colloquy demonstrating the waiver…
[2] A defense attorney's oral request to try a specific count non-jury does not constitute a valid oral waiver of the defendant's right to a jury trial on that count.
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Join FLexlaw to unlock all legal intelligence“Because appellant did not sign a written waiver of his right to jury trial on the count for possession of firearm by a convicted felon, the issue is whether there is in the record a valid oral waiver.”
Establishes the core issue: the absence of a written waiver requires examining whether a valid oral waiver exists.
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Join FLexlaw to unlock all legal intelligenceBabb was charged with multiple felonies. He requested trial by jury but his counsel orally requested that the court try the possession of a firearm by…
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OWEN, WILLIAM C., Jr., Senior Judge.
Ronald Babb, charged with multiple felonies, pled not guilty and requested trial by jury. He was tried by a jury on three counts but, at the request of his counsel, was tried by the court on the fourth count, possession of a firearm by a convicted felon. He was convicted on all counts and brings this direct appeal. The absence from the record of a valid waiver of Babb’s right to jury trial on the count for possession of a firearm by a convicted felon requires that we reverse the judgment and sentence, as to that count only, and remand for a new trial.
A defendant charged with a criminal offense may in writing waive a jury trial with the consent of the state, see Fla.R.Crim.P. 3.260, or orally on the record after colloquy from which the court finds the waiver is voluntarily, knowingly and intelligently made. Tucker v. State, 559 So. 2d 218 (Fla.1990); Sinkfield v. State, 681 So. 2d 838 (Fla. 4th DCA 1996). Because appellant did not sign a written waiver of his right to jury trial on the count for possession of firearm by a convicted felon, the issue is whether there is in the record a valid oral waiver. At the status conference held prior to commencement of the trial, defense counsel made the following request to the trial judge:
MR. VOLPI: My client has a VOP and a substantive case. We would be trying the substantive case. There are four counts that apply to my client. The last charge, possession of a firearm by a convicted felon, I would ask to try that one non-jury outside the presence of the jury. So there would be three charges tried by the jury.
No further discussion was had regarding the waiver of jury trial on the count for possession of firearm by a convicted felon. Counsel’s oral request to the court (to try the firearm possession count non-jury) does not even come up to the level of counsel’s statement to the court in Sink-field (that the defendant agreed to waive jury trial) which we held was not a valid oral waiver. There is simply nothing in the record to demonstrate that appellant made a knowing, voluntary, and intelligent waiver of his right to trial by jury on the possession of firearm count.
Counsel’s request was a strategic choice which, from experience, we recognize is a choice made almost invariably by defen dants in similar situations. We do not impute to counsel any intent to lead the court into error by making such request without following the provisions of Rule 3.260, and we strongly suspect that counsel’s request was made with appellant’s full approval. The fact remains, however, that our supreme court has made it clear that waiver of this constitutional right may be made only by written waiver in accordance with the rule, or orally on the record after colloquy from which the court finds the waiver is voluntarily, knowingly and intelligently made. See State v. Upton, 658 So. 2d 86 (Fla.1995); Tucker. That was not done in this case. We again urge both the bench and bar to a closer adherence to the teachings of Upton and Tucker. The few minutes extra that might be required to secure a written waiver and conduct on the record the necessary colloquy with the defendant could save a great deal of time, effort and expense down the road.
Appellant also argues that it was error to deny his motion for judgment of acquittal on the grand theft count because the state failed to prove the value beyond a reasonable doubt. The information charged grand theft of firearms, jewelry and a bicycle of a value of $300 or more. The state proved the theft of a firearm, so proof of valuation was not necessary. See State v. Getz, 435 So. 2d 789 (Fla.1983).
The judgment on the count of possession of a firearm by a convicted felon is reversed, the sentence thereon is vacated, and this cause is remanded for a new trial on that count. The judgment and sentences on the remaining counts are severally affirmed.
AFFIRMED, in part; REVERSED AND REMANDED, in part.
DELL and STEVENSON, JJ„ concur.
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Scruggs v. State, 785 So. 2d 605 (Fla. 4th DCA 2001)…e for a new trial because the record does not contain a written or oral waiver of jury trial. See Tucker v. State, 559 So. 2d 218, 220 (Fla.1990) (a defendant may waive the right to a jury trial, provided the waiver is in the record); Babb v. State, 736 So. 2d 35, 37 (Fla. 4th DCA 1999) (“[0]ur supreme court has made it cléar that waiver of [a jury trial] may be made only by written waiver in accordance with the rule, or orally on the record after colloquy from which the court finds the waiver is voluntarily…
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Walker v. State, 149 So. 3d 170 (Fla. 4th DCA 2014)…ible error. See, e.g., Racine v. State, 16 So. 3d 955, 956-57 (Fla. 5th DCA 2009) (reversing battery convictions where state conceded error and record did not contain a written waiver or evidence of a valid oral waiver of jury trial); Babb v. State, 736 So. 2d 35, 36 (Fla. 4th DCA 1999) (“The absence from the record of a valid waiver of Babb’s right to jury trial ... requires that we reverse the judgment and sentence ... and remand for a new trial.”); Sansom v. State, 642 So. 2d 631, 632 (Fla. 1st DCA 1994)…
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Westberry v. State, 239 So. 3d 186 (Fla. 3d DCA 2018)…ses: (1) there was no record evidence the defendant (as opposed to counsel) waived the jury trial right, Torres v. State, 43 So. 3d 831, 833 (Fla. 1st DCA 2010) (“[T]he record is devoid of any mention of the right to a jury trial.”); Babb v. State, 736 So. 2d 35, 36 (Fla. 4th DCA 1999) (noting “[t]he absence from the record of a valid waiver of Babb’s right to jury trial”); Sinkfield v. State, 681 So. 2d 838, 838 (Fla. 4th DCA 1996) (“[T]he appellant’s remaining mute (during counsel’s apparent waiver of app…
Previewing 3 of 5 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)
- State v. Upton, 658 So. 2d 86 (Fla. 1995)
- State v. Getz, 435 So. 2d 789 (Fla. 1983)
- Sinkfield v. State, 681 So. 2d 838 (Fla. 4th DCA 1996)