Criminal Court: CRIMINAL PROCEDURE
– Waiver of Jury Trial – appellant entitled to jury trial pursuant to statute
– appellant also entitled to jury trial as offense was punishable by more
than six months incarceration – record on appeal devoid of written or oral
waiver of appellant’s right to jury trial – attorney’s actions cannot constitute
an implied waiver without affirmative on-the-record showing that appellant
agreed with waiver – Reversed and remanded.
Wise v. State, No. 02-12832 (
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF
vs. APPEAL NO: CRC02-12832CFANO
Opinion filed April _____, 2003.
Appeal from a decision of the
William H. Overton, Judge.
Terrance A. Bostic, Esquire
Attorney for Appellant.
Assistant State Attorney.
ORDER AND OPINION
In the lower court, Wise was convicted by nonjury trial of driving under the influence (DUI) in violation of section 316.193, Florida Statutes. Because it was her third DUI conviction and the prior conviction occurred within 10 years, she was sentenced to thirty days county jail followed by one year probation, pursuant to section 316.193(6)(c). Additionally, her driver’s license was revoked for ten years, pursuant to section 322.28(2)(a)3.
Wise raises a single issue in this appeal. She argues that she did not manifest a knowing, voluntary, and intelligent waiver of her constitutional right to trial by jury. Conversely, although conceding that the record is devoid of a written or oral waiver, the State argues that it is customary for charges arising in traffic court to remain in traffic court and be heard nonjury unless a demand for trial by jury is filed. The State maintains that Wise was represented by two local attorneys who were familiar with local practice, and that as such, the failure to request a jury trial in this instance constitutes an implied waiver.
In general, the right to a jury trial in criminal proceedings is granted
by the Sixth Amendment of the United States Constitution; Article I, section
16 of the Florida Constitution; section 918.0157, Florida Statutes; and Fla.
R. Crim. P. 3.251. However, for petty
or misdemeanor offenses punishable by incarceration of six months or less,
there is no federal or state constitutional right to a jury trial.
Whirley v. State, 450 So. 2d 836 (
As indicated above, at the time of arrest, Wise had two previous convictions for DUI. Thus, pursuant to section 316.193(2)(a)1-2, she was facing 12 months incarceration, and a fine not exceeding $2500.00. Moreover, she was charged with DUI under section 316.193. See § 316.1934(4), Fla. Stat. (2000) (“Any person charged with a violation of s. 316.193, whether in a municipality or not, is entitled to trial by jury according to the Florida Rules of Criminal Procedure.”). As such, Wise was entitled to a jury trial.
waiver of one’s right to a jury trial must be voluntary, knowing, and intelligent. Tucker v. State, 559 So. 2d 218 (
Case law imposes strict requirements if the waiver is oral. An attorney’s statement to the court that his client has “agreed to go non-jury” is insufficient. Upton, 658 So. 2d at 87. So too is an attorney’s waiver in open court where the defendant remains mute. Sansom v. State, 642 So. 2d 631 (Fla. 1st DCA 1994). In this respect, the State’s argument on appeal must fail. The Supreme Court has held that an attorney’s waiver is insufficient where there is no affirmative showing on the record that the defendant agrees with the waiver. Upton, 658 So. 2d at 86. It therefore follows that an attorney’s actions cannot constitute an implied waiver without an affirmative, on-the-record showing that the defendant agrees with the waiver.
this case, no written waiver appears in the record.
Moreover, no oral waiver or colloquy into the matter appears in the
transcript. The State concedes that no written or oral
wavier was had in this case. This court
is therefore required to reverse. Tharp
v. State, 4
Reversed and remanded for proceedings not inconsistent with this opinion.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER, Circuit Judge
W. DOUGLAS BAIRD, Circuit Judge
NANCY MOATE LEY, Circuit Judge
cc: Terrance A. Bostic, Esquire
State Attorney’s Office
The statutory right to a jury trial, by its
plain language, must be demanded. See