Reed v. State
| Decision Date | 02 May 1985 |
| Docket Number | No. 65323,65323 |
| Citation | 10 Fla. L. Weekly 255,470 So.2d 1382 |
| Parties | 10 Fla. L. Weekly 255 Howard REED, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Geoffrey B. Dobson of Meredith, Dobson, Ready and Reynolds, St. Augustine, for petitioner.
Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent.
This cause is before us on a certified question of great public importance. State v. Reed, 448 So.2d 1102 (Fla. 5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Petitioner was charged with criminal mischief under section 806.13(2)(a), Florida Statutes (1981), 1 specifying that petitioner had willfully and maliciously broken a glass door panel of a St. Augustine bank, damage being less than $200. The charged offense is a second-degree misdemeanor punishable by a term of imprisonment not exceeding sixty days and/or a fine of up to $500. The county court refused to grant petitioner a jury trial but, in its appellate capacity, the circuit court determined that petitioner was entitled to a trial by jury. The circuit court reasoned that although petitioner was not entitled to a jury trial under Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), he was entitled to a jury trial because this Court had extended the right to a jury trial for petty offenses by adopting Florida Rule of Criminal Procedure 3.251. On further review, the district court granted a writ of certiorari quashing the circuit court order and certifying a question of great public importance to this Court:
Does a criminal accused have the right to a jury trial in a county court for a petty offense created by state statute, under the Florida Constitution or criminal rule 3.251?
We first address the issue of our scope of review. Respondent urges that we limit our review to the certified question and not reach the issue of whether the United States Constitution grants petitioner the right to a jury trial. We decline to do so. First, our scope of review encompasses the decision of the court below, not merely the certified question. Hillsborough Association for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So.2d 610 (Fla.1976); Rupp v. Jackson, 238 So.2d 86 (Fla.1970). Second, the court below addressed the right to a jury trial under the United States Constitution and properly so, since we have held "that the federal petty crime exception to the jury trial requirement in criminal prosecutions is also an exception under our own constitutional provisions." Whirley v. State, 450 So.2d 836, 839 (Fla.1984).
Florida Rule of Criminal Procedure 3.251 provides "[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury...." Contrary to the circuit court, the district court held that this language merely tracks the language of article I, section 16 of the Florida Constitution and does not change or expand a criminal defendant's right to jury trial under our state constitution. We agree with the district court reasoning on this point and so hold.
On their face, article III, section 2 and the sixth amendment of the United States Constitution appear to mandate that defendants have an unrestricted right to jury trials in all criminal prosecutions. 2 Nevertheless, the district court correctly recognized that there is a class of petty offenses which may be tried without a jury. Baldwin; Duncan. However, the district court then went on to hold that Baldwin and Duncan establish a brightline test between serious and petty crimes: serious crimes have a maximum penalty of more than six months' imprisonment or more than a $500 fine, and petty offenses have a maximum penalty of six months' or less imprisonment or a $500 or less fine. In support, the district court cited Hilliard v. City of Gainesville, 213 So.2d 689, 691 (Fla.1968), where we stated that Since Cheff and Hilliard issued, the United States Supreme Court has issued Baldwin, wherein the Court appeared to modify, or at least clarify, its view on the demarcation line between serious and petty crimes. As we read the plurality opinion in Baldwin, imprisonment of more than six months is sufficiently severe to elevate the offense to the serious crime category. 3 However, the converse is not true: a maximum penalty of less than six months does not necessarily place a crime in the petty crime category. There are also other criteria relating to the nature of the crime which might elevate it into the serious crime category. See Baldwin 399 U.S. at 68-9 n. 6, 90 S.Ct. at 1887-8 n. 6.
The district court below did not have the benefit of Whirley wherein we enumerated four classes of serious crimes:
crimes that were indictable at common law, Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); crimes that involve moral turpitude, Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); crimes that are malum in se, or inherently evil at common law, District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); and crimes that carry a maximum penalty of more than six months in prison. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
Whirley, 450 So.2d at 838. Thus, although the severity of the maximum authorized penalty is the most obvious criterion in determining whether a crime is a serious crime, there are other criteria which, if met, will mandate that the accused be granted the right to a jury trial. The Court, in District of Columbia v. Colts, 282 U.S. 63, 73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930), put the question well: "[w]hether a given offense is to be classed as a [serious] crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense." This view is compatible, but not congruent, with our reading of the Florida Constitution which recognizes the right to trial by jury in those cases "in which the right was recognized at the time of the adoption of the State's first Constitution." State v. Webb, 335 So.2d 826, 828 (Fla.1976) (citations omitted). 4
We turn then to the dispositive question: was criminal mischief indictable at common law? The offense of criminal mischief is rooted in the common law offense of malicious mischief. Wharton's Criminal Law, § 485 (14th ed. 1981). In Florida, malicious mischief was codified and eventually relabeled as criminal mischief. 5 The conclusion is inescapable. As this word "malicious" suggests, the offense is malum in se and was, thus, indictable at common law. District of Columbia v. Colts; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); State v. Watts, 48 Ark. 56, 2 S.W. 342 (1886); 38 C.J. Malicious Mischief, § 1 at 357 (1925 edition); and Baldwin.
We recast the certified question for consonance with the facts and issue of the case: Does the accused in a criminal mischief prosecution have a right under the Florida and United States Constitutions to a jury trial? For the reasons set forth above, we answer in the affirmative. The decision of the district court is quashed and the cause remanded for proceedings consistent with this opinion.
It is so ordered.
Although I concur in the majority decision, I believe for the reasons set forth below that we should reexamine our approach to the right to trial by jury and attempt to provide more rational criteria which will reinvigorate the provisions of article I, sections 16 and 22 of the Florida Constitution.
Historically, this Court has taken a narrow view of the right to trial by jury set forth in article I, section 22:
It has long been established that this provision guarantees the right to trial by jury in only those cases in which the right was recognized at the time of the adoption of the State's first constitution. Tilton v. Horton, 103 Fla. 497, 137 So. 801 (1931); Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722 (1904); Hunt v. Jacksonville, 34 Fla. 504, 16 So. 398 (1895); Flint River Steam Boat Co. v. Roberts, 2 Fla. 102 (1848). It does not extend to those cases where the right and the remedy with it were unknown at the time of the adoption of the first constitution. Pugh v. Bowden, 54 Fla. 302, 45 So. 499 (1907).
State v. Webb, 335 So.2d 826, 828 (Fla.1976). In my view there are serious flaws in this reading of our state constitution. First, it unnecessarily freezes the development of the constitutional right to trial by jury to "only those cases in which the right was recognized at the time of the adoption of the State's first constitution." Id. (emphasis supplied). Under this approach the constitutional right atrophies and the right becomes increasingly less effectual as new criminal offenses are enacted into statutes for which there is no statutory right to trial by jury. See Justice Overton's specially concurring opinion to Whirley v. State, 450 So.2d 836, 839 (Fla.1984), expressing the view that although there was no constitutional right to trial by jury for traffic offenses or criminal contempt the legislature should provide a statutory right.
Our reading of the Florida Constitution forces courts to immerse themselves into historical research of obscure and poorly documented nuances of English common law on an offense-by-offense basis. In my view this research produces ambivalent answers, at best, and does not fully serve the purpose of the right to jury...
To continue reading
Request your trial
-
In re Contemnor Caron
...6, 7, 305 N.E.2d 794, 796 (no right to jury trial for petty offense, following Cheff); contrary to Cheff and Weiner, see Reed v. State (Fla.1985), 470 So.2d 1382, 1384: "[A] maximum penalty of less than six months does not necessarily place a crime in the petty crime category" which may be ......
-
Johnson v. State
... ... have a right to a jury trial for serious crimes—i.e., those that "have a maximum penalty of more than six months' imprisonment or more than a $500 fine"—but not petty offenses—i.e., those that "have a maximum penalty of six months' or less imprisonment or a $500 or less fine." Reed v ... 994 So.2d 963 ... State, 470 So.2d 1382, 1383 (Fla.1985); see also Whirley v. State, 450 So.2d 836, 839 (Fla.1984) ("[T]he federal petty crime exception to the jury trial requirement in criminal prosecutions is also an exception under our own constitutional provision.") (citing Aaron ... ...
-
Rodriguez Sanchez v. State
...court departed from the essential requirements of law when it held that appellant was not entitled to a jury trial. In Reed v. State, 470 So.2d 1382 (Fla.1985), the supreme court held that an accused charged with criminal mischief, a second degree misdemeanor punishable by a term of impriso......
-
Sanchez v. State, 5D04-2234.
...of criminal mischief). The offense of criminal mischief derives from the common law offense of "malicious mischief." See Reed v. State, 470 So.2d 1382 (Fla.1985). Explicit in its common law moniker is the requirement that the defendant's wrongful act be committed with malice. The traditiona......