          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2942
                  _____________________________

SHAWN RICHARD LOWRY,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                           April 5, 2019


PER CURIAM.

     Petitioner claims that the trial court departed from the
essential requirements of law by continuing his involuntary
commitment because the trial court was without authority to find
him not guilty by reason of insanity where there was no written
waiver of jury trial, as required by Florida Rule of Criminal
Procedure 3.260, or any inquiry that petitioner knowingly and
intelligently waived his right to a jury trial.

     At most, the record reflects that the prosecutor and defense
counsel entered into a stipulation that the trial court should find
petitioner not guilty by reason of insanity, which is not sufficient
to establish that petitioner consented to the stipulation or
otherwise knowingly and intelligently waived his right to a jury
trial. See Fuller v. State, 970 So. 2d 422, 423-24 (Fla. 4th DCA
2007); Harringer v. State, 566 So. 2d 893, 894 (Fla. 4th DCA 1990);
Thompson v. Crawford, 479 So. 2d 169, 179-80 (Fla. 3d DCA 1985).
Absent a valid plea, the trial court’s finding before trial that
petitioner was not guilty by reason of insanity was a nullity or void
ab initio. Id. at 185.

    The state has properly conceded that petitioner’s involuntary
commitment is unlawful because the trial court did not have the
authority to find petitioner not guilty by reason of insanity. See
McCroan v. State, 148 So. 3d 548 (Fla. 1st DCA 2014); McCroan v.
State, 110 So. 3d 533 (Fla. 1st DCA 2013). Accordingly, we grant
the petition, quash the trial court’s commitment order, and
remand for further proceedings consistent with this opinion.

    PETITION GRANTED.

WOLF, WINOKUR, and JAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jason A. Cobb, DeFuniak Springs, for Petitioner.

Ashley Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Respondent.




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