HECTOR FRANCISCO TOSTA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hector Tosta appealed his grand larceny conviction and sentence, challenging whether he validly waived his constitutional right to a jury trial. The Florida District Court of Appeal reversed, finding that a valid waiver requires either a written waiver by the defendant or clear evidence in the record that the defendant personally understood and concurred in waiving the jury trial right.
The court held that under these circumstances, there was no valid waiver of the jury trial right. While the court did not categorically prohibit oral waivers, it required either a written waiver by the defendant or evidence in the record showing the defendant's personal concurrence and understanding of what waiving a jury trial meant.
[1] A defendant's waiver of the right to a jury trial must be in writing and consented to by the State, as required by Florida Rule of Criminal Procedure 3.260.
[2] An oral waiver of a jury trial by defense counsel, without a written waiver by the defendant and without record evidence of the defendant's concurrence or understanding,…
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Join FLexlaw to unlock all legal intelligence“A defendant may in writing waive a jury trial with the consent of the State.”
Establishes the procedural requirement under Florida Criminal Procedure Rule 3.260 that a jury trial waiver must be in writing.
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Join FLexlaw to unlock all legal intelligenceAt the beginning of Tosta's trial for grand larceny, defense counsel Mr. Fath stated that the defendants' desire was to have a non-jury trial. The pro…
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ALDERMAN, Chief Judge.
The defendant appeals his conviction and sentence for grand larceny. The only issue is whether there was a valid waiver of jury trial on behalf of the defendant.
We find that there was not and reverse.
The following discussion occurred at the beginning of the trial: THE COURT: Is the State ready?
MR. THOMPSON (Prosecutor): The State is prepared to go forward, Your Honor. THE COURT: Are the defendants ready, Mr. Fath? MR. FATH (Defense counsel): The defendants are before the Court ready for trial. THE COURT: All right. Gentlemen, I understand it is the defendants’ desire to have a non-jury trial. MR. FATH: That is correct, Your Hon-or. THE COURT: Mr. Fath, I assume you have acquainted your clients with the constitutional right to a jury trial. MR. FATH: I have, Sir. THE COURT: All right. Mr. Thompson, do you so join in that motion with Mr. Fath? MR. THOMPSON: Your Honor, the State would join in that motion that this would be a non-jury trial. THE COURT: All right. I want that affirmatively reflected in the record at this time. No inquiry was made of the defendant, nor did he sign a written waiver of his right to a jury trial. Our Constitution provides that “the right of trial by jury shall be secure to all and remain inviolate.” Article I, Section 22. An accused person is thereby assured the right of trial by jury, but inherent in the constitutional right is the right to waive it. State v. Garcia, 229 So. 2d 236 (Fla. 1969).
The manner by which a waiver may be accomplished is set out in Fla.R.Crim.P. 3.260: “A defendant may in writing waive a jury trial with the consent of the State.” The defendant in this case did not in writing waive his right; we have only an oral waiver by defendant’s counsel and the agreement of the State. Obviously this does not comply with the requirement of Rule 3.260. Is it possible for a defendant to give a valid waiver not in writing? The court in Jones v. State, 155 Fla. 558, 20 So. 2d 901 (1945), by way of dicta suggests that an oral waiver of jury trial by defense counsel, even though not made in conformity with the statute (Section 912.01, Florida Statutes 1941), is sufficient to constitute a lawful waiver. In the present case we do not say that there may never be a valid oral waiver of jury trial by a defendant. We do hold, however, under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant’s concurrence in his counsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver. Compare: State v. Garcia, supra; Quartz v. State, 258 So. 2d 283 (Fla. 3d DCA 1972); Kinser v. State, 291 So. 2d 80 (Fla. 3d DCA 1974); Wallace v. State, 319 So. 2d 117 (Fla. 3d DCA 1975); Harris v. State, 342 So. 2d 97 (Fla. 3d DCA 1977).
REVERSED and REMANDED.
DOWNEY and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Tucker v. State, 559 So. 2d 218 (Fla. 1990)…the record contained no written waiver of a jury trial and the trial court failed to inquire into the defendant’s waiver of a jury trial or conducted an insufficient inquiry. E.g., Shuler v. State, 463 So. 2d 464 (Fla. 2d DCA 1985); Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978). Tucker argues that, because he did not execute a written waiver, he did not knowingly and intelligently waive his right to a jury trial. . He insists that a valid waiver can only be in w…
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Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)…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.3d DCA 1980); Tosta v. State, 352 So. 2d 526 (Fla.4th DCA 1977); Molfetas v. State, supra. The existence of a written waiver does not, ipso facto, show that a defendant freely, intelligently and voluntarily waived his right to trial by jury. Viggiani v. State, supra. Here the defendant was wi…
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Johnson v. State, 994 So. 2d 960 (Fla. 2008)…e record contained no written waiver of a jury trial and the trial court failed to inquire into the defendant’s waiver of a jury trial or conducted an insufficient inquiry.” (citing Shuler v. State, 463 So. 2d 464 (Fla. 2d DCA 1985); Tosta v. State, 352 So. 2d 526 (Fla. 4th DCA 1977))). Courts in other jurisdictions have also described the denial of the right to a jury trial as structural error. See, e.g., Miller v. Dormire, 310 F. 3d 600, 604 (8th Cir. 2002) (finding that the defendant’s attorney’s waiver o…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)
- Quartz v. State, 258 So. 2d 283 (Fla. 3d DCA 1972)
- Raleigh Jones v. State, 155 Fla. 558 (Fla. 1945)
- Kinser v. State, 291 So. 2d 80 (Fla. 3d DCA 1974)
- Wallace v. State, 319 So. 2d 117 (Fla. 3d DCA 1975)
- Willy Harris v. State, 342 So. 2d 97 (Fla. 3d DCA 1977)