Whirley v. State

• Decision Date: 17 May 1984
• Docket Number: No. 62948,62948
• Parties: Karen WHIRLEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 836

450 So.2d 836

Karen WHIRLEY, Petitioner, v. STATE of Florida, Respondent.

No. 62948.

Supreme Court of Florida.

May 17, 1984.

Judge C. Luckey, Jr., Public Defender, Daniel R. Kirkwood and Bryan E. Hopkins, Asst. Public Defenders, Tampa, for petitioner.

Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince and Diane Barrs, Asst. Attys. Gen., E.J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for respondent.

PER CURIAM.

This cause, State v. Whirley, 421 So.2d 555 (Fla. 2d DCA 1982), is before us as conflicting with Powers v. State, 370 So.2d 854 (Fla. 3d DCA), review denied, 379 So.2d 209 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was arrested on December 30, 1980, and charged with a violation of section 316.193(1), Florida Statutes (1979), and section 39-2(b), Tampa City Code, for driving under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants. The citation subsequently was amended to charge a violation of section 316.193(3), Florida Statutes (1979), ¹ driving with an unlawful blood alcohol level. The charge of violating section 316.193(1) was dropped. The county judge denied petitioner's motion for a jury trial, found her guilty, and sentenced her to ten days in jail. On appeal, the circuit court reversed.

The Second District Court of Appeal quashed the circuit court's order and held that when one is charged with a violation of both a city ordinance and a state statute, one is entitled to a jury trial only if the penalty that could be imposed exceeds six months in jail and a $500 fine. Whirley, 421 So.2d at 556. The penalty for a first-time violation of section 316.193(3), Florida Statutes (1979), is imprisonment for not more than ninety days or a fine of not more than $250 or both.

The jury trial provision of the sixth amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." This provision is made binding upon the states through the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The most significant limitation on the right to trial by jury is the so-called petty offense exception which limits the constitutional guarantee of a jury trial to "serious" crimes and thus limits the literal application of the sixth amendment. The distinction between petty offenses and serious crimes has focused upon the consideration of whether a given crime is serious enough to warrant a jury trial. If a crime is excluded from the serious category, it is petty. The classes of serious crimes are: 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). The first three criteria involve the nature of the offense itself. In Baldwin, the court found that the one most relevant and objective criterion to use in determining whether an offense is serious or petty is the severity of the maximum authorized penalty. The Court held that a crime could not be treated as petty, regardless of whether any of the "nature of the offense" criteria applied, if the potential penalty exceeded six months in prison.

The conviction under consideration in Whirley is a petty offense that fits within none of the above classes; thus, the petitioner enjoys no federally protected right to a jury trial.

Our next consideration is whether there exists the right to a jury trial under the Florida Constitution or statutory laws. We made a constitutional inquiry in State v. Webb, 335 So.2d 826 (Fla.1976), wherein the accused was charged with a violation of section 325.12, Florida Statutes (1975), driving a motor vehicle without a valid inspection certificate. Justice Adkins, writing for the Court, analyzed Webb's right to a jury trial under article I, section 22, of the Florida Constitution, which provides that "[t]he right of trial by jury shall be secure to all and remain inviolate" and found the right nonexistent for traffic-law violations:

Our Constitution, which became effective upon Florida's admittance to the Union in 1845, has contained similar language throughout our history. Although this right has been carefully protected and enforced by this Court, it is not unlimited. 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 [citations omitted]. 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).

Turning to the case before us, it seems obvious that the right to a trial by jury has never been constitutionally required for violations of Fla.Stat. § 325.12, F.S.A., or for any other traffic law violation. While it is true that jury trials were provided for prior to the enactment of Florida's decriminalization law, the right was a statutory one only; it has never been, and is not now, a constitutionally required right.

Webb, 335 So.2d at 828. We find the Webb rationale applicable to those violations of section 316.193 which do not carry a possible penalty of more than six months' imprisonment.

Article I, section 16, of the Florida Constitution provides: "In all criminal prosecutions the accused shall ... have a speedy and public trial by impartial jury ...." The state argues that the offense charged is not a crime under section 775.08(2), Florida Statutes (1979), ² and therefore a charge of its commission does not confer the right to a jury trial. We reject this reasoning and adopt the analysis in Thompson v. Office of Public Defender, 387 So.2d 541 (Fla. 5th DCA 1980). In Thompson the Fifth District Court of Appeal considered whether a violation of section 316.193(1), Florida Statutes (1979), was a crime in the context of determining whether a public defender had the duty to represent an indigent charged with violation of the statute. The Fifth District recognized dissonance when reading together section 775.08(2), which excepted from the definition of "misdemeanor," "any violation of any provision of chapter 316" and section 316.655, which read in pertinent part:

(1) A violation of any of the provisions of this chapter, except criminal offenses enumerated in section (4), shall be deemed an infraction, as defined in § 318.13(3).

(4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.072, s. 316.192, s. 316.193, or s. 316.1935 shall be punished as specifically provided in such sections.

Thompson, 387 So.2d at 543. The court concluded that these latter subsections make it clear that a violation of section 316.193 is a "criminal offense." We agree that a violation of section 316.193 is a criminal offense, and therefore we consider the applicability of article I, section 16 of the Florida Constitution to the charge under consideration. We hold that the federal petty crime exception to the jury trial requirement in criminal prosecutions is also an exception under our own constitutional provision. See Aaron v. State, 345 So.2d 641 (Fla.), cert. denied, 434 U.S. 868, 98 S.Ct. 208, 54 L.Ed.2d 146 (1977); Aaron v. State, 284 So.2d 673 (Fla.1973).

The only arguable statutory right to a jury trial for what we find to be a petty offense is under section 932.61, Florida Statutes (1979), which provides:

A person charged in court with a violation of a county or municipal ordinance for which no jury trial is provided may, when the violation of a county or municipal ordinance is also a violation of a state law, cause the transfer of the violation to the appropriate court in which a trial by jury is provided ....

That section, however, does not independently confer a right to a jury trial if none would exist for a violation of the state law alone. Its primary purpose is to prevent circumvention of a right to a jury trial for a state criminal offense by the device of charging an equivalent municipal or county ordinance violation.

In 1979 the legislature chose to give one charged with violating section 316.193(1), Florida Statutes (1979), the right to a jury trial by enacting section 322.262(4), Florida Statutes (1979):

(4) Any person charged with driving a motor vehicle while under the influence of intoxicating beverages to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure.

Because the legislature failed to grant a similar right in the case of one charged with driving or being in physical control of a vehicle with a blood alcohol level of 0.10 per cent or above, we conclude the omission was intentional. As long as the offense charged carries a penalty of no more than six months' imprisonment and a fine of no more than $500, we see nothing to preclude the legislature from intending such a result. We therefore approve the district court's holding that petitioner was not entitled to a jury trial. We disapprove any language in Powers that conflicts with this opinion.

It is so ordered.

ALDERMAN, C.J., and ADKINS, McDONALD and EHRLICH, JJ., concur.

OVERTON, J., concurs specially with an opinion.

SHAW, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion.

OVERTON, Justice, specially concurring.

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