Murrow v. Osceola County

679 So. 2d 883, 1996 Fla. App. LEXIS 9772, 1996 WL 531696

• Court: District Court of Appeal of Florida
• Decided: September 20, 1996
• Docket: No. 95-2077
• Status: Published

Opinion

PER CURIAM.

Cherry B. Murrow appeals the denial of her motion, pursuant to Rule 1.540, Florida Rules of Civil Procedure, to have a judgment of forfeiture vacated based on the fact that during her bench trial, the trial court failed to obtain from her a written waiver of her right to a jury trial. We affirm.

Rule 1.430(d), Florida Rules of Civil Procedure, states that “a party who fails to serve a demand as required by this rule waives trial by jury.” Section 932.704(3), Florida Statutes (1995) provides:

Any trial on the ultimate issue of forfeiture shall be decided by a jury, unless such right is waived by the claimant through a written waiver or on the record before the court conducting the forfeiture proceeding.

Murrow, by agreeing to and participating in, a bench trial, affirmatively waived her right to a jury trial.

We note additionally that even assuming error was made in failing to inform Murrow of her right to a jury trial, her proper remedy was by appeal, not by way of a 1.540 motion. Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990) (judicial error such as a “mistaken view of the law” is not one of the circumstances contemplated by the rule.)

AFFIRMED.

PETERSON, C.J., W. SHARP, and ANTOON, JJ., concur.