Cox v. State

Miami-Dade County Circuit Court

Cox v. State

43 Fla. Supp. 48

CourtCircuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County

DecidedAugust 11, 1975

DocketNo. 75-5981

StatusPublished

This text of 43 Fla. Supp. 48 (Cox v. State) is published on Counsel Stack Legal Research, covering Circuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cox v. State, 43 Fla. Supp. 48 (Fla. Super. Ct. 1975).

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Opinion

WILLIAM A. HERIN, Circuit Judge.

Opinion and judgment: This is an appeal from a county court conviction for driving while under the influence of alcoholic beverages. This court has examined the record on appeal, the briefs, and heard argument of counsel.

The record discloses that immediately prior to trial, defense counsel requested a trial by jury. The trial court denied the request, stating that it was untimely made. In this, the trial court was in error.

In the instant case, the record is silent as to any affirmative waiver of the right by the defendant. Certainly he did not execute a written waiver pursuant to RCrP 3.260. In the absence of such a waiver, appellant’s conviction must be reversed. Sneed v. Mayo, 66 So.2d 865 (Fla. 1953); Ivory v. State, 184 So.2d 896 (Fla. 4th Dist. 1966). See also Duncan v. Louisiana, 391 U.S. 145 (1968).

The right to trial by jury is a fundamental constitutional right, and the courts must indulge every reasonable presumption against waiver. Johnson v. Zerbst, 304 U.S. 485 (1938). The waiver may not be presumed from a silent record. See Carnley v. Cochran, 369 U.S. 506 (1962).

Accordingly, the conviction sub judice is reversed and the sentence is vacated. Because the defendant has fully served the sentence imposed, should the state choose to retry the defendant, it should be aware of the mandate of North Carolina v. Pearce, 395 U.S. 711 (1969).

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WILLIAM A. HERIN, Circuit Judge.

Opinion and judgment: This is an appeal from a county court conviction for driving while under the influence of alcoholic beverages. This court has examined the record on appeal, the briefs, and heard argument of counsel.

The record discloses that immediately prior to trial, defense counsel requested a trial by jury. The trial court denied the request, stating that it was untimely made. In this, the trial court was in error.

In the instant case, the record is silent as to any affirmative waiver of the right by the defendant. Certainly he did not execute a written waiver pursuant to RCrP 3.260. In the absence of such a waiver, appellant’s conviction must be reversed. Sneed v. Mayo, 66 So.2d 865 (Fla. 1953); Ivory v. State, 184 So.2d 896 (Fla. 4th Dist. 1966). See also Duncan v. Louisiana, 391 U.S. 145 (1968).

The right to trial by jury is a fundamental constitutional right, and the courts must indulge every reasonable presumption against waiver. Johnson v. Zerbst, 304 U.S. 485 (1938). The waiver may not be presumed from a silent record. See Carnley v. Cochran, 369 U.S. 506 (1962).

Accordingly, the conviction sub judice is reversed and the sentence is vacated. Because the defendant has fully served the sentence imposed, should the state choose to retry the defendant, it should be aware of the mandate of North Carolina v. Pearce, 395 U.S. 711 (1969).

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43 Fla. Supp. 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-state-flacirct11mia-1975.

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