GEORGE MOLFETAS, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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The circuit court departed from the essential requirements of law by affirming a conviction where the defendant was tried without a jury despite a written demand for one.
Petitioner was tried and found guilty of assault and battery in county court, despite having filed a written demand for a jury trial. The circuit cour…
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PER CURIAM.
We are presented with a petition for certiorari to review a decision of the circuit court in the exercise of its appellate jurisdiction. The petition alleges, and the record supports, the allegation that petitioner was tried and found guilty of assault and battery in the County Court in and for Dade County, Florida. Further, it appears that petitioner had filed in the county court a demand for jury trial but that notwithstanding this demand he was tried before the court without a jury.
Upon appeal, the circuit court affirmed without opinion. We hold that the circuit court departed from the essential requirements of law in that petitioner could not lawfully be tried without a jury unless jury trial was waived in writing. See CrPR 3.251 and 3.260.
The State urges that the petitioner implicitly waived the right to a jury trial by “idly standing] by” and failing to demand at the beginning of the trial that which had already been demanded by him in writing. The right to a jury trial is a constitutional right. See Miller v. Rolfe, Fla.App.1957, 97 So. 2d 132; and cf. Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., Fla.App.1959, 108 So. 2d 641. The waiver of such a constitutional right “. . . must be shown to have been knowingly, voluntarily and intentionally made.” Baker v. Wainwright, 422 F. 2d 145 (5th Cir. 1970), and see U. S. v. Auerbach, 420 F. 2d 921 (5th Cir. 1969).
Thereupon, the writ of certiorari is granted and the circuit court’s order affirming the judgment of the county court is quashed with directions to grant petitioner a new trial.
It is so ordered.
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Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)…the defendant responded “whichever.” The defendant then executed a written waiver of jury trial. [*637] The right to trial by jury is a constitutional right. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Molfetas v. State, 323 So. 2d 598 (Fla.3d DCA 1975). As in the case of the waiver of any constitutional right, the waiver of trial by jury must be shown to have been knowingly and intelligently made. State v. Garcia, 229 So. 2d 236 (Fla.1969); Viggiani v. State, 390 So. 2d 147 (Fla.…
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…y voluntary and knowing, it has been obtained in violation of due process and is therefore void.”). “The right to trial by jury is a constitutional right, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 144[4], 20 L.Ed.2d 491 (1968); Molfetas v. State, 323 So. 2d 598 (Fla. 3d DCA 1975). As in the case of the waiver of any constitutional right, the waiver of trial by jury must be shown to have been knowingly and intelligently made.” Enrique v. State, 408 So. 2d 635, 637 (Fla. 3d DCA 1982). Where the right to jur…
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Anne Powers v. State, 370 So. 2d 854 (Fla. 3d DCA 1979)…nsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver, [citing authorities]” The circumstances in Tos- [*856] ta appear to be identical to those in the present case. See also Molfetas v. State, 323 So. 2d 598 (Fla. 3d DCA 1975). We, therefore, issue the writ and quash the circuit court’s order of affirmance with directions for further proceedings in accordance with this opinion. . “Rule 3.251 Right to Trial by Jury In all criminal prosecutions the acc…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baker v. Louie L. Wainwright, 422 F.2d 145 (5th Cir. 1970)
- Julia Miller and Renick v. Smith, 97 So. 2d 132 (Fla. 1st DCA 1957)
- Verla Mae Gaymon v. Quinn Menhaden Fisheries OF Tex., Inc., 108 So. 2d 641 (Fla. 1st DCA 1959)
- United States v. Dory Auerbach, 420 F.2d 921 (5th Cir. 1969)