ERB
v.
STATE OF FLORIDA
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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.
[1] A defendant charged with criminal mischief has a constitutional right to a jury trial, and a valid waiver of that right requires an express oral or written waiver by the…
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Join FLexlaw to unlock all legal intelligence“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.”
Court's statement of the controlling legal principle from Sansom v. State
Aimee Erb was convicted after a bench trial of criminal mischief with damage to property under $200, a second-degree misdemeanor. There was no oral or…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2024-2674 _____________________________
AIMEE VICTORIA ERB,
Appellant,
v.
STATE OF FLORIDA,
Appellee. _____________________________
On appeal from the County Court for Escambia County. Barry E. Dickson, Jr., Judge.
August 6, 2025
PER CURIAM.
Following a bench trial, Aimee Erb appeals her conviction for criminal mischief with damage to property under $200. See § 806.13(1)(b)1., Fla. Stat. (2023). The offense charged was a second-degree misdemeanor. Id. Defendants charged with any category of criminal mischief have a right to a jury trial under the Florida and United States Constitutions. Reed v. State, 470 So. 2d 1382, 1384 (Fla. 1985). The State concedes this error, and we accept the concession. Because there was no oral or written waiver by Erb of her right to a jury, we must reverse the conviction and remand the case for a new trial. See Sansom v. State, 642 So. 2d 631, 632 (Fla. 1st DCA 1994) (citations omitted) (“[A] defendant's silence in court does not
2 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 also Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008); Fla. R. Crim. P. 3.260; cf. Saini v. State, 50 Fla. L. Weekly D1264, 2025 WL 1646535 (Fla. 1st DCA Jun. 11, 2025) (holding that oral waiver of jury trial by defendant following inquiry on the record with defense counsel was a valid waiver). REVERSED and REMANDED. BILBREY, KELSEY, and NORDBY, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Jessica J. Yeary, Public Defender, and Jasmine Dixon, Assistant Public Defender, Tallahassee, for Appellant.
James Uthmeier, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee, for Appellee.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Johnson v. State, 994 So. 2d 960 (Fla. 2008)
- Sansom v. State, 642 So. 2d 631 (Fla. 1st DCA 1994)