Opinion
No. 95-2898.
April 24, 1996. Rehearing Denied June 12, 1996.
An Appeal from the Circuit Court for Monroe County, Steven Shea, Judge.
Bennett H. Brummer, Public Defender, and Suzanne M. Froix, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Doquyen T. Nguyen, Assistant Attorney General, for appellee.
Before JORGENSON, COPE and GERSTEN, JJ.
Following a bench trial, David Robinson appeals from judgments of conviction and sentences for grand theft and possession of marijuana. For the following reasons, we reverse and remand for a new trial.
The record fails to demonstrate that defendant knowingly and intelligently waived his right to a trial by jury. There is no written waiver. Although a written waiver is not essential, "it is better practice for trial courts to use both a personal on-the-record waiver and a written waiver." Tucker v. State, 559 So.2d 218, 220 (Fla. 1990); see also State v. Upton, 658 So.2d 86 (Fla. 1995) (same). In the absence of a written waiver, "[a]n appropriate oral colloquy will focus a defendant's attention on the value of a jury trial and should make a defendant aware of the likely consequences of the waiver." Tucker, 559 So.2d at 220. However, the oral colloquy must affirmatively show that the defendant was aware of the fundamental constitutional right that he was waiving.
In this case, the record of the oral colloquy is, at best, equivocal. Although the defendant's attorney and the State had signed a written stipulation waiving a jury trial, it is not at all clear that defendant understood the import of that stipulation.
To avoid this result, trial courts should heed the recommendation of the Florida Supreme Court to obtain a written waiver of a jury trial signed by the defendant, and conduct a thorough inquiry of the defendant to ensure that the defendant understands the full import of his waiver.
Reversed and remanded for a new trial.
JORGENSON and GERSTEN, JJ., concur.
Based on Tucker v. State, 559 So.2d 218 (Fla. 1990), I have no alternative but to concur. I would hope, however, that at some appropriate time the Florida Supreme Court will revisit this decision.
Florida Rule of Criminal Procedure 3.260 provides, "A defendant may in writing waive a jury trial with the consent of the state." The rule does not require any colloquy. A simple writing signed by the defendant is sufficient to waive trial by jury.
If instead of signing a written waiver form, the defendant states on the record that he is waiving trial by jury, the decision in Tucker says that the waiver is ineffective unless the defendant is given an oral explanation by the judge. The colloquy utilized in Tucker is set out in Ringemann v. State, 546 So.2d 52, 53 (Fla. 4th DCA), review denied, 551 So.2d 462 (Fla. 1989). See Tucker v. State, 547 So.2d 270, 271 (Fla. 4th DCA 1989), decision approved, Tucker v. State, 559 So.2d at 220.
It is inconsistent to allow a one-line written waiver under rule 3.260, while holding that the self-same words are insufficient if the defendant personally announces his oral waiver on the record. If counsel is deemed competent to advise the defendant with respect to executing written waiver, then counsel should be deemed competent to advise the defendant with respect to the oral waiver. The effectiveness of the waiver ought not depend on a matter of form.