County 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 (Fla. 6th Cir. App. Ct. April 28, 2003).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA
IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

ELAINE WISE,

                        Appellant,

 

vs.                                                                               APPEAL NO:  CRC02-12832CFANO

 

STATE OF FLORIDA,

                        Appellee.

                                                                      /

 

Opinion filed April _____, 2003.

 

Appeal from a decision of the

County Court for Pinellas County;

William H. Overton, Judge.

 

Terrance A. Bostic, Esquire

Attorney for Appellant.

 

Hayward Dykes, Jr., Esquire

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  Additionally, her driver’s license was revoked for ten years, pursuant to section 322.28(2)(a)3.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 (Fla. 1984).  Moreover, pursuant to section 918.0157, there is no statutory right to a jury trial for a crime punishable by incarceration of six months or less if the trial judge announces, at the outset, that he or she will not impose incarceration or adjudicate the defendant guilty. [1]  

            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

A waiver of one’s right to a jury trial must be voluntary, knowing, and intelligent.  Tucker v. State, 559 So. 2d 218 (Fla. 1990).  Although Fla. R. Crim. P. 3.260 requires the waiver of jury trial to be in writing, a valid waiver may be made orally.  Id. at 220; State v. Upton, 658 So.2d 86, 87 (Fla. 1995).  “An appropriate oral colloquy will focus a defendant’s attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver.”  Ziegler v. State, 647 So. 2d 292, 293 (Fla. 2d DCA 1994) (citing Tucker, 559 So. 2d at 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.  

In 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 Fla. L. Weekly Supp. 443a (Fla. 20th Jud. Cir. Nov. 18, 1996) (“The unfortunate result in a case like the one at bar is that the defense may remain silent with the prospect of a new trial should the first trial result in a conviction.  However, without some showing on the record of a waiver, we are required to reverse.”).

Reversed and remanded for proceedings not inconsistent with this opinion.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.

 

 

____________________________________

                                                                                    JOHN A. SCHAEFER, Circuit Judge

 

 

 

____________________________________

                                                                                    W. DOUGLAS BAIRD, Circuit Judge

                                   

 

 

____________________________________

                                                                                     NANCY MOATE LEY, Circuit Judge

 

                                                                       

 

 

 

cc:        Terrance A. Bostic, Esquire

            State Attorney’s Office

           

             

 

[1]    The statutory right to a jury trial, by its plain language, must be demanded.  See § 918.0157, Fla. Stat. (2000).