Sinkfield v. State, 95-3354
| Decision Date | 16 October 1996 |
| Docket Number | No. 95-3354,95-3354 |
| Citation | 681 So.2d 838 |
| Parties | 21 Fla. L. Weekly D2235 Alex SINKFIELD, Appellant, v. STATE of Florida, Appellee. Fourth District |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and David McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, charged with a third degree felony, filed a demand for jury trial. After his counsel orally waived jury trial, appellant was tried non-jury and convicted. We reverse the judgment and remand for a new trial because the record contains neither a written waiver nor a valid oral waiver of appellant's demand for trial by jury.
A defendant charged with a criminal offense may in writing waive a jury trial with the consent of the state (Fla.R.Crim.P. 3.260), or orally on the record after colloquy from which the court finds the waiver is voluntarily, knowingly and intelligently made. Tucker v. State, 559 So.2d 218 (Fla.1990). The issue here is whether there was a valid oral waiver, no contention being made that appellant signed a written waiver.
On August 8, 1995, appellant and a co-defendant, one Bennett, appeared before Judge Lupo to discuss a plea and at that time the trial was set for August 9th. On the latter date appellant and Bennett, with their respective counsel, appeared before Judge Carlisle for a non-jury trial. Before commencement of the trial the following colloquy occurred between the court and Mr. Chaney, counsel for Bennett:
Mr. Bennett, did you agree and consent to have this case tried by the Judge and not a jury.
[MR BENNETT]: Yes
Mr. Chaney then outlined to his client, Bennett, the consequences of waiving trial by jury and again obtained his consent to proceed with a nonjury trial. At that point the following colloquy occurred between the court and appellant's counsel, Mr. Fleischman:
Notwithstanding the court's comment (that earlier that morning appellant and Bennett had agreed on the record "to go non-jury"), there is no record of such having occurred. True, counsel's representations to the court (which implied that Judge Lupo had made the requisite inquiry and findings the preceding day) may have led the trial court to conclude that further inquiry and findings were unnecessary. The fact is, however, that the reporter's transcript of the hearing before Judge Lupo contains no discussion of appellant waiving his right to a trial by jury.
Counsel's statement to the court that appellant "agreed to go non-jury" was not...
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