Sessums v. State, s. 80-1274
Decision Date | 18 August 1981 |
Docket Number | Nos. 80-1274,80-1331,s. 80-1274 |
Citation | 404 So.2d 1074 |
Parties | Barry Eugene SESSUMS, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
The sole issue on this appeal by Barry Sessums from orders revoking probation and adjudication and sentencing on a substantive charge, is whether Sessums effectively waived trial by jury. The specific issue is whether record evidence showing an information signed by defendant and stamped with "waived trial by jury" and record evidence that defense counsel orally waived jury trial in open court in the presence of the defendant and without objection by the defendant is sufficient to find that the defendant freely and voluntarily waived his right to trial by jury.
The record in this case indicates the following colloquy between the court and the counsel:
I am going to put the thing over. I will try it non-jury a week from today at 10:00. I will try it non-jury and the probation simultaneously.
THE COURT: See you then.
Does the State agree to waive the jury trial under those circumstances?
Mr. Sessums, I am going to advise you that I want you here at 2:00 next Monday.
A criminal defendant is guaranteed the right to trial by jury by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 22, of the Florida Constitution. A defendant may not be deprived of this right without an intelligent, voluntary and knowing waiver of that right. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
Though the better practice is for a trial court to interrogate a defendant so as to satisfy itself that the defendant is fully apprised of his right to a jury trial and that the waiver of that right is made intelligently and voluntarily, Viggiani v. State, 390 So.2d 147 (Fla.3d DCA 1980), rev. granted, 402 So.2d 613 (Fla.1981); Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972), cert. denied, 263 So.2d 825 (Fla.1972), the only requirements of Florida Rule of Criminal Procedure 3.260 providing for waiver of jury trial, are that a waiver of a jury trial be in writing, see Powers v. State, 370 So.2d 854 (Fla.3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978); Molfetas v. State, 323 So.2d 598 (Fla.3d DCA 1975), and that the State consent, see State ex rel. Gerstein v. Baker, 339 So.2d 271 (Fla.3d DCA 1976). Florida, unlike some jurisdictions, has never required by statute, rule, or case law that the court itself inform the defendant of this right or make direct inquiry of the defendant as to the voluntariness of his waiver. 1
Under Florida law a waiver will be effective when there is consent of the parties and a defendant has either signed a written waiver in court which is made part of the record, Durcan v. State, 383 So.2d 248 (Fla. 3d DCA 1980); Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977), Kinser v. State, 291 So.2d 80 (Fla. 3d DCA 1974), cert. denied, 297 So.2d 832 (Fla.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975), or has previously signed a written waiver which is made part of the record and, in addition, either personally or through his counsel orally waives a jury trial in open court. 2 Quartz v. State, supra. We find this case to fall within these minimal requirements for effective waiver and hold that by signing the waiver and by failing to object to waiver of jury made by his counsel, in his presence and in open court, Sessums effectively waived his right to a jury trial. Quartz v. State, supra.
Affirmed.
1 See, e. g., Arizona, R.Crim.P. 18.1(b) ( ); California, Art. I, § 16, Cal.Const. (amended 1974) (a jury may be waived in a criminal trial by the consent of both parties expressed in open court by the defendant and the defendant's counsel); Michigan, Stat. § 763.3 ( ), People v. Blackmon, 95 Mich.App. 462, 291 N.W.2d 82 (Mich.App.1980) ( ); Maryland Rule, 735(d) ( ), Dortch v. State, 428 A.2d 1220 (Md.App.1981); Spector v. State, 289 Md. 407, 425 A.2d 197 (Md.App.1981); Pennsylvania, R.Crim.P. 1101 ( ), Commonwealth v. Candia, --- Pa.Super. ---, 428 A.2d 993 (1981). Commonwealth v. Phillips, --- Pa.Super. ---, 427 A.2d 1391 (1981); Commonwealth v. Baxter, --- Pa.Super. ---, 422 A.2d 1388 (1980).
See also Alaska, R.Crim.P. 23(a) and (b) ( ); Walker v. State, 578 P.2d 1388 (Alaska 1978) ( ).
2 Compare Florida law, supra, with Illinois law, Chapter 38, section 103-6, Laws of Illinois, (every person accused of offense has right to trial by jury unless understandingly waived by defendant in open court). Illinois cases hold...
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