FREDERICK PARKS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Frederick Parks appeals a trial court's denial of his Rule 3.850 motion for relief from a conviction for assault with intent to commit rape, challenging whether he validly waived jury trial. The court affirmed the denial, holding that the absence of a signed waiver endorsement on the information was not fatal where the record showed Parks actually did waive jury trial, and that the ground had been previously raised and rejected.
The court affirmed the denial of the motion, holding that: (1) under Florida law, a signed waiver endorsement on the information is not essential to a valid jury waiver if the record otherwise shows the defendant in fact waived jury trial; (2) Parks's own first motion established he had actually waived jury trial; and (3) the ground was barred because it had been raised in the first motion and could not be repeated in a second motion.
[1] A waiver of jury trial, even if not in full conformity with statutory requirements, may be deemed sufficient if accepted and acted upon by the trial court.
[2] A motion for post-conviction relief may be denied if the grounds raised have already been presented in a prior motion.
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Join FLexlaw to unlock all legal intelligence“The absence of a signed waiver of jury trial by appellant on the information was not sufficient to require granting relief from the conviction on the second motion of the appellant where the record otherwise reflects that the appellant in fact did waive jury trial.”
Establishes the holding that a signed endorsement is not essential to a valid waiver if the record shows actual waiver occurred.
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Join FLexlaw to unlock all legal intelligenceParks was tried without a jury on February 1, 1967, in Dade County Criminal Court and found guilty of assault with intent to commit rape, receiving a …
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On February 1, 1967, following trial without a jury in the Criminal Court of Record of Dade County, the appellant was found and adjudged guilty of assault with intent to commit rape. He was sentenced thereon to imprisonment for twenty years, with provision for the sentence to be served “upon the expiration of the sentence imposed by the Circuit Court of the eleventh Judicial Circuit of Florida in Case No. 2279.” 1
This appeal is from an order of the trial court denying a second motion filed by the appellant under Rule 3.850 CrPR, 33 F.S.A., for relief from the conviction. The ground relied upon in that motion was that he was tried without a jury without having waived jury trial. In support of that ground the appellant relies upon the circumstances that the information does not contain a signed endorsement by him of waiver of jury trial. Under § 912.01 Fla.Stat., F.S.A. it is provided that such waiver, when made, shall be in open court, with a signed endorsement thereof by the defendant on the information. Appellant was charged in this case and tried with five other defendants, and the information contains an endorsement of waiver of jury trial signed by three of them.
In denying the appellant’s second motion for relief the trial court recited that at the trial the movant had been represented by eminent counsel of his own choosing, and held: “That the files and records of this court show conclusively the peti*643tioner is not entitled to relief which he seeks.” That holding of the trial court, in denying the second motion for relief, was well founded. The absence of a signed waiver of jury trial by appellant on the information was not sufficient to require granting relief from the conviction on the second motion of the appellant where the record otherwise reflects that the appellant in fact did waive jury trial. The case of Ivory v. State, Fla.App.1966, 184 So.2d 896, relied on by the appellant, contains language which supports the proposition just stated.
The showing in this record which refutes the contention made by the appellant in his second motion that he did not waive jury trial, appears from the appellant’s own statement in his earlier motion for relief, filed by plaintiff on July 14, 1967, wherein among other grounds the appellant stated that he had waived jury trial but contended his waiver thereof had been coerced by his (employed) counsel. That first motion for relief was denied by the trial court on September 21, 1967. The appeal therefrom by the appellant was quashed. Under Jones v. State, 155 Fla. 558, 20 So.2d 901, a waiver of jury trial, which was made without full conformity with the statute, if accepted and proceeded upon by the trial court, should be held sufficient.
The judgment of the trial court in denying the second motion for relief also must be sustained on the further basis that the ground of the second motion, relating to absence of valid waiver of jury trial, had been presented by an earlier motion for relief. The cases holding that a similar ground may not be repeated in such motions are so numerous as to obviate a need for their citation. In the first motion for relief filed by the appellant he stated he had waived jury trial, but contended that his waiver thereof had been coerced by his attorney. In the second motion he challenged his trial without a jury because of claimed absence of a signed endorsement thereof on the information. The two. grounds are sufficiently similar to invoke application of the rule just stated.
For the reasons assigned, the order appealed from is affirmed.
(concurring specially)-
I concur in the decision to affirm upon the first ground stated.
PEARSON, Judge
(concurring specially)-
I concur in the decision to affirm upon the first ground stated.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)…nefit him to have a less strict standard of waiver.” Id. In the instant case, neither a written waiver of jury trial, as required by Florida Rule of Criminal Procedure 3.260,19 nor any other type of waiver appears in the record. Cf. Parks v. State, 263 So. 2d 642 (Fla. 3d [*178] DCA)(absence of compliance with statutory-requirement that waiver be indicated and signed on the information not sufficient to require granting relief from conviction where the record otherwise reflects that defendant did in fact wai…
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Russell v. State, 342 So. 2d 96 (Fla. 3d DCA 1977)…y was orally agreed to by the defendant pursuant to a question by the court. Thereafter, the defendant signed a written waiver. The waiver of jury trial was sufficient in all respects. See Jones v. State, 155 Fla. 558, 20 So. 2d 901; Parks v. State, 263 So. 2d 642 (Fla.3d DCA 1972); see also Quartz v. State, 258 So. 2d 283 (Fla.3d DCA 1972); Kinser v. State, 291 So. 2d 80 (Fla.3d DCA 1974). The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is…
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Parks v. State, 267 So. 2d 834 (Fla. 1972)…Certiorari denied. 263 So. 2d 642. ROBERTS, C. J., and ERVIN, CARLTON, McCAIN and DEKLE, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Raleigh Jones v. State, 155 Fla. 558 (Fla. 1945)
- Parks v. State, 206 So. 2d 431 (Fla. 3d DCA 1968)
- Parks v. Louie L. Wainwright, 429 F.2d 1240 (5th Cir. 1970)
- Ivory v. State, 184 So. 2d 896 (Fla. 4th DCA 1966)