Dumas v. State

• Decision Date: 13 September 1983
• Docket Number: No. 81-2293,81-2293
• Citation: 439 So.2d 246
• Parties: Anthony DUMAS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 246

439 So.2d 246

Anthony DUMAS, Appellant, v. The STATE of Florida, Appellee.

No. 81-2293.

District Court of Appeal of Florida Third District.

Sept. 13, 1983.

Rehearing Denied Nov. 7, 1983.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, and Jack Ludin, Asst. Attys. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

The question presented for review is whether record evidence showing an information stamped "waived trial by jury with consent of state", above which is the signature of the defendant, is sufficient, on a direct appeal from a judgment of conviction, to support a finding of an effective waiver of that constitutional right. We hold that it may be sufficient, and is in this case.

The following exchange appears in the record on the date the case was called for trial:

PROSECUTOR: This [case of Anthony Dumas] was set for a bench trial at eight o'clock. We did not try the case.

I believe we are in the process of plea negotiations at this time, and we may pass it.

Marilynn [defense counsel], is that correct?

DEFENSE COUNSEL: That is correct.

THE COURT: All right.

(Thereupon, other matters were heard, after which the following proceedings were had:)

THE COURT: Anthony Dumas.

DEFENSE COUNSEL: We are ready for trial.

The entire record on the waiver question consists of that colloquy and the signed written waiver on the information. On these facts, the present case is virtually indistinguishable from Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), rev. denied, 402 So.2d 613 (Fla.1981).

In Viggiani v. State, we held that a defendant did not effectively waive his right to trial by jury where the minimal requirements for a valid and effective waiver were not met, i.e., that the defendant's signature be executed in open court and incorporated either in the transcript of the proceedings or otherwise made part of the record. We recede from Viggiani. ¹

Where a record shows a waiver, although there is no further evidence that the waiver was executed in open court, ² there is a presumption that in the regular course of the proceedings the defendant, through his attorney, learned of, and waived his constitutional right to jury trial. The presumption which springs from defendant's signature on the formal charging document ³ denoting waiver of jury trial, is, more precisely, that the defendant was advised by his attorney of his right to trial by jury, the consequences of relinquishing that right, and any advantages to be expected therefrom, ⁴ all of which makes for the knowing and intelligent waiver required by Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). ⁵

The effect of the presumption is merely procedural, shifting the burden to the accused to produce evidence that the record showing of waiver, and all that it connotes, is untrue. The most important consideration given for the creation of a presumption of law is probability, i.e., that "proof of fact B renders the inference of the existence of fact A so probable that it is sensible and time-saving to assume the truth of fact A until the adversary disproves it." ⁶

Defendant contends here that trial by jury is a fundamental constitutional right, guaranteed an accused, which is forfeited only by a waiver which is voluntary and intelligent, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); and Floyd v. State, 90 So.2d 105 (Fla.1956). There is no disagreement on that point. Significantly, he does not allege here that his waiver was not knowingly or intelligently given, nor that he was prejudiced by any failure of an in-court examination to ascertain whether the waiver of jury trial was knowing, free and intelligent. See United States v. Tobias, 662 F.2d 381 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). The real question presented is whether the record must affirmatively show that a defendant's waiver of a right to trial by jury was in fact knowing and intelligent. In support of his argument that there is a constitutional requirement for an affirmative showing of jury waiver, appellant directs us to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) which holds that there is reversible error under the due process clause of the fourteenth amendment where the record does not disclose that the defendant voluntarily and understandingly entered a guilty plea.

That Boykin v. Alabama concerned a plea of guilty instead of a waiver of trial by jury is a crucial distinction. An analogy of Boykin to a waiver of jury trial was rejected by the Ninth Circuit in United States v. Reyes-Meza de Polanco, 422 F.2d 1304 (9th Cir.), cert. denied, 397 U.S. 1081, 90 S.Ct. 1536, 25 L.Ed.2d 817 (1970), which held that the record, containing a written form signed by the appellant and her trial counsel, adequately reflected a waiver of right to jury trial in the absence of the court's personal interrogation of the appellant as to that waiver. A waiver of a jury trial does not foreclose an adversary proceeding on points of fact and law, nor does it preclude appellate review of the court's findings; thus, it does not have the weighty consequence of a guilty plea. A guilty plea, as noted in Boykin v. Alabama, is essentially the conviction and involves the simultaneous waiver of numerous constitutional rights--the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. While a guilty plea ends in judgment, jury waiver is often a tactical decision. Jackson v. United States, 394 F.2d 114 (5th Cir.1968) ; Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186 (1979).

A comparison of Florida Rules of Criminal Procedure 3.260 (waiver of jury trial) with 3.170(j) (responsibility of court on plea of guilty) evidences the Florida Supreme Court's intent, consistent with Boykin v. Alabama, to establish more stringent requirements for a valid guilty plea than for a valid waiver of jury trial. Rule 3.170(j) requires that before a plea of guilty may be accepted, the judge shall determine, in open court and on the record, "that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty." In contrast, Rule 3.260 requires only a valid written waiver of jury trial by the defendant, with the state's consent. It has never been a requirement in this state by statute, rule, or case law that the court inform the defendant of his right to a jury trial, or that the court interrogate the defendant as to the voluntariness of his waiver, or that there be a record examination of the defendant on his understanding of the waiver. See Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981) and cases collected therein.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), seven members of the United States Supreme Court held that where a defendant charged with first-degree murder had not been informed that intent to cause death is an essential element of second-degree murder--the offense to which he was advised to plead guilty--the conviction was properly set aside by the district court. Four members of the Court, in a concurring opinion, equated the guilty plea to a fact-finding process requiring that the defendant be advised of, or otherwise have knowledge of, the essential elements of the crime charged before entering a guilty plea to that offense. Two members of the Court dissented, expressing a contrary view that where the accused was represented by competent attorneys who, after consideration of all the evidence, advised him, as a tactical matter to plead to second-degree murder, the test to be applied in determining whether the defendant was properly so advised was one based on the day-to-day practices of reasonably competent attorneys in the business of representing criminal defendants. In other dicta, which set the stage for things to come, the majority in Henderson also noted:

[I]t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. 426 U.S. at 647, 96 S.Ct. at 2258.

In the more recent case of Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), the Court, by a 5-4 majority, abandoned the longstanding view that presumptions of law were inadequate to satisfy the requirement that a plea of guilty be voluntary and intelligent. Lonberger contended at his Ohio murder trial that when he had entered a plea to aggravated battery in an unrelated Illinois case years earlier, he did not understand that the plea included a charge of attempted murder, as that offense was not specifically named in the formal statement of conviction and was not clearly referred to when the judge questioned Lonberger at the guilty plea proceedings regarding the offenses to which he was pleading guilty. Over that objection, the record of his prior conviction was admitted into evidence in both the trial and penalty phases of the Ohio first-degree murder prosecution. The United States Court of Appeals for the Sixth Circuit, in reversing the conviction, held that evidence of the attempted murder conviction should not have been given to the jury in Lonberger's murder trial. In reversing the Sixth Circuit and upholding the admission into evidence of the Illinois conviction, the United States Supreme Court embraced the dicta from Henderson v. Morgan, holding:

Under Henderson, respondent must be presumed to have been informed, either by his lawyers or at one of the pre-sentencing...