Ivory v. State
| Decision Date | 04 April 1966 |
| Docket Number | No. 237,237 |
| Citation | 184 So.2d 896 |
| Parties | William IVORY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William Ivory, in pro. per.
Earl Faircloth, Atty. Gen., Tallahassee, and Herbert P. Benn, First Asst. Atty. Gen., Miami, for appellee.
Defendant, William Ivory, pled not guilty and was given a nonjury trial. He was found guilty and convicted of breaking and entering with intent to commit a misdemeanor and petit larceny. He appeals the conviction. We reverse.
Out of defendant's now familiar, handwritten, prepackaged appeal papers containing a barrage of ill-founded charges of error and misconduct comes a shaft that hits the mark. Our sift discloses an assertion that he was wrongfully deprived of his right to trial by jury.
An accused has a right to trial by jury. He can waive this right. However, in order for him to effectively waive this right it must be done in open court and the fact of it must affirmatively appear from the record or transcript. The background, operation and force of this requirement was discussed in definitive fashion in Sneed v. Mayo, Fla.1953, 66 So.2d 865. We particularly adopt as a part of this opinion the expression found at page 871:
'Section 11 of the Declaration of Rights, Florida Constitution, F.S.A., declares that 'In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury * * *.' It also prescribes that in all such prosecutions, the accused 'shall be heard by himself, or counsel, or both * * *.'
'As to the provision of Section 11, Declaration of Rights, which guarantees the right of trial by jury, it has been the statutory law of this state since 1868 that in a trial for a misdemeanor a jury may be waived, Provided the waiver is entered of record. Laws 1869, c. 1637, subc. 13, sec. 4. In May 1939, this Court held, in Zellers v. State, 138 Fla. 158, 189 So. 236, that even though the existing statute authorized waiver of a jury trial only in case of misdemeanors, a Competent defendant accused of felony might waive his right to a trial by jury and consent to the trial of the issues by the court, Provided the fact of his waiver was entered on the record. On October 10, 1939, the Florida Criminal Procedure Act became effective. Ch. 19554, Acts of 1939. Section 181 thereof provided that Section 912.01, Florida Statutes 1951, F.S.A. (Emphasis supplied.)
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Williams v. State, 82-1610
...for just such a hearing. In doing so, we followed the order of another panel of this court, which was based upon Ivory v. State, 184 So.2d 896 (Fla. 4th DCA 1966). In Ivory, however, there was nothing in the record before the reviewing court, thus requiring the evidentiary As it turns out, ......
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Baker v. Wainwright, 69--857
...counsel. He entered a plea of not guilty and waived trial by jury which waiver is affirmatively shown by the record. Cf. Ivory v. State, Fla.App.1966, 184 So.2d 896. The arraignment was a critical stage in the felony prosecution. Sardinia v. State, Fla.1964, 168 So.2d 674. Hence, petitioner......
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Parks v. State, 71--366
...motion of the appellant where the record otherwise reflects that the appellant in fact did waive jury trial. The case of Ivory v. State, Fla.App.1966, 184 So.2d 896, relied on by the appellant, contains language which supports the proposition just The showing in this record which refutes th......