Patrick McKinnon v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: March 11, 2026
• Docket: 3D2025-0999
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 11, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0999 Lower Tribunal No. B25-2781 ________________

Patrick McKinnon, Appellant,

vs.

State of Florida, Appellee.

An Appeal from the County Court for Miami-Dade County, Marcus Bach Armas, Judge.

Carlos J. Martinez, Public Defender, and Amy Lynn Weber, Assistant Public Defender, for appellant.

James Uthmeier, Attorney General, and Lourdes B. Fernandez, Assistant Attorney General, for appellee.

Before EMAS, LOBREE and BOKOR, JJ.

BOKOR, J. Patrick McKinnon appeals his conviction for resisting an officer without

violence in violation of section 843.02, Florida Statutes. McKinnon raises two

issues on appeal. First, the State failed to file a valid charging document and

therefore the trial court lacked jurisdiction. Second, the trial court erred in

denying McKinnon his right to a trial by jury on a first-degree misdemeanor

punishable by imprisonment of up to one year.

The State concedes error on the first issue, the lack of a valid charging

document. The State initially took the position on the second issue that there

was conflicting law on the issue of a right to a jury trial under the

circumstances, but it didn’t matter because the first issue was dispositive.

Then, after the reply brief, the State amended the confession of error to

confess error on the jury trial issue, too. But a few days later, the State

withdrew the amendment to the confession of error, confessing error only on

the first issue of the lack of a valid charging document. The State was right

the second time. After a full review of the record, we conclude that either

basis supports reversal.

As to the failure to file a valid charging document, we note that the

record contains no indictment, information, or notice to appear. See L.L.H. v.

State, 873 So. 2d 1252, 1254 (Fla. 5th DCA 2004) (“[S]ubject matter

jurisdiction is determined by the charge made in an indictment or

2 information. . . . A judgment of conviction prior to presentment of a charging

document is void because the court lacks subject matter jurisdiction.”); State

v. Vazquez, 450 So. 2d 203, 204 (Fla. 1984) (“[J]urisdiction in criminal cases

is determined by the charge made in the indictment or information.”); see

also Hampton v. State, 103 So. 3d 98, 110–11 (Fla. 2012) (explaining that

prosecution starts with the filing of an indictment, information, or, in the case

of misdemeanors, prosecution may also commence by notice to appear

issued pursuant to rule); Fla. R. Crim. P. 3.125 (providing for a notice to

appear); Fla. R. Crim. P. 3.140(a)(2) (establishing that “prosecutions for

misdemeanors, municipal ordinances, and county ordinances may be by

notice to appear issued and served pursuant to rule 3.125”).

We next address the trial court’s conducting a bench trial despite the

defendant’s jury trial demand. This court recently explained the right to trial

by jury guaranteed by the United States and Florida Constitutions, and

outlined the relevant contours of such right. See Jean-Charles v. State,

3D25-0376, 2026 WL 290596, at *2 (Fla. 3d DCA Feb. 4, 2026). Based on

that explanation, the court reversed a conviction after a bench trial where the

defendant was charged and convicted of a crime “punishable by

[incarceration for] a term of up to one year, not six months or less” and the

trial court failed to colloquy the defendant on an oral jury trial waiver. Id. at

3 *3. There, the defendant there orally waived his right to a jury trial, but the

record showed no appropriate colloquy or inquiry into the defendant’s oral

waiver to ensure that such waiver was “‘voluntarily, knowingly and

intelligently made.’” Id. (quoting Sinkfield v. State, 681 So. 2d 838, 838 (Fla.

4th DCA 1996)).

In withdrawing the amended confession of error pertaining to the jury

trial demand, the State argued that Jean-Charles isn’t on point because here,

we have an express jury trial demand and a crime punishable by up to a year

in jail, as opposed to an oral waiver and no colloquy. But the State provides

no meaningful legal or factual distinction to justify a different outcome. This

is so because the facts present here—an express jury trial demand and a

contemporaneous objection to a bench trial—present a clearer violation of

the right to a trial by jury. Unsurprisingly then, we hold that the logic and

constitutional reasoning of Jean-Charles apply: it is fundamental error for the

trial court to conduct a bench trial instead of a jury trial where: (1) there is an

express jury demand; and (2) the crime being tried is punishable by

incarceration for up to a year, not six months or less. See id. at *3 (holding

that absent a written waiver or proper colloquy on an oral waiver, “the trial

court’s decision to proceed to a bench trial, even after the State certified it

was not seeking jail or probation” constituted fundamental error where “the

4 crime charged here is punishable by a term of up to one year, not six months

or less”); see also Baker v. State, 386 So. 3d 141, 142 (Fla. 4th DCA 2024)

(“The failure to obtain a valid waiver of a defendant’s right to jury trial is not

only per se reversible error, but also constitutes fundamental error.”).

Reversed and remanded.

LOBREE, J., concurs,

EMAS, J., concurs in results only.