        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                           GERALD WALKER,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-3239

                           [October 22, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
501996CF004502AXXMB.

  Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

                        CONFESSION OF ERROR

CIKLIN, J.

   The appellant, Gerald Walker, appeals his judgment and sentence,
entered after the trial court held a non-jury trial without obtaining a
waiver of jury trial from Walker. We accept the state’s confession of error
and reverse and remand for new trial.

    Walker was indicted for first-degree murder with a firearm. While
trial was pending, he was found incompetent to stand trial and, in 1997,
was committed to the Department of Health and Rehabilitative Services.
More than a decade later, Walker was then adjudged competent to stand
trial.

   During a status hearing after Walker was found competent to proceed,
the parties discussed the possibility of a non-jury trial. At a subsequent
status hearing, both the prosecutor and defense counsel agreed the case
should be set for non-jury trial, and the trial court did so.

   The state’s evidence at trial established that Walker fatally shot
another man in the back of the head after the men argued about a drug
transaction. During a police interview, Walker confessed to shooting the
victim. Walker relied upon an insanity defense and expert witnesses
presented by the state and defense differed on whether Walker met the
legal definition of insanity. At the close of evidence, the court rejected
Walker’s insanity defense and found him guilty as charged. The court
sentenced him to life in prison.

    On appeal, Walker argues that his conviction and sentence for first-
degree murder amounted to per se reversible error in the absence of a
written consent or evidence of an on the record oral waiver showing that
it was voluntarily, knowingly, and intelligently made.

    The United States and Florida Constitutions provide defendants with
a fundamental right to a jury trial. State v. Upton, 658 So. 2d 86, 87
(Fla. 1995) (citing U.S. Const. amend. VI; Article I, § 22, Fla. Const.).
However, “[a] defendant charged with a criminal offense may in writing
waive a jury trial with the consent of the state (Fla. R. Crim. P. 3.260), or
orally on the record after colloquy from which the court finds the waiver
is voluntarily, knowingly and intelligently made.” Sinkfield v. State, 681
So. 2d 838, 838 (Fla. 4th DCA 1996) (citation omitted). A defendant’s
silence during trial and failure to object to the non-jury trial is not a
waiver of his right to jury trial. Upton, 658 So. 2d at 88. Further,
“[c]ounsel’s statement to the court that [defendant] ‘agreed to go non-
jury’ [is] not a valid oral waiver of [a defendant’s] right to jury trial in the
absence of the court’s requisite inquiry of the [defendant] and its findings
on the record that [the defendant] voluntarily, knowingly and intelligently
agreed with the waiver or acquiesced in his counsel’s statement.”
Sinkfield, 681 So. 2d at 839 (citations omitted).

   Here, our review of the record, trial transcript, and pre-trial hearing
transcripts confirms that a valid waiver—written or oral—was never
consummated.

    Florida courts have treated this type of error as per se reversible error.
See, e.g., Racine v. State, 16 So. 3d 955, 956-57 (Fla. 5th DCA 2009)
(reversing battery convictions where state conceded error and record did
not contain a written waiver or evidence of a valid oral waiver of jury
trial); Babb v. State, 736 So. 2d 35, 36 (Fla. 4th DCA 1999) (“The absence
from the record of a valid waiver of Babb’s right to jury trial . . . requires
that we reverse the judgment and sentence . . . and remand for a new

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trial.”); Sansom v. State, 642 So. 2d 631, 632 (Fla. 1st DCA 1994) (finding
that conviction for grand theft “must” be reversed where the record
contained no valid waiver).1 Accordingly, we reverse and remand for new
trial.

    Reversed and remanded for new trial.

DAMOORGIAN, C.J., and FORST, J., concur.

                              *          *         *

    Not final until disposition of timely filed motion for rehearing.




1 Some limited authority exists for the proposition that this type of error is
subject to harmless error analysis. In Torres v. State, 43 So. 3d 831, 834 (Fla.
1st DCA 2010), the court reversed a conviction for providing a false name to an
officer where there was no valid waiver of jury trial in the record. The court
noted that “[t]he error has not been shown to be harmless, and the State has
not argued otherwise.” Id. However, Torres relied on Johnson v. State, 994 So.
2d 960, 964-65 (Fla. 2008), where the court noted that the failure to obtain a
valid waiver of jury trial in the second phase of a bifurcated felony DUI trial was
subject to harmless error analysis. It is not evident the Florida Supreme Court
in Johnson intended harmless error analysis to apply to a review of the jury trial
guarantee in any context other than cases where the jury was not allowed to
consider a particular element of an offense. In finding that harmless error
analysis applied, the Johnson court referenced cases involving the denial of a
jury finding on a particular element of the charged offense, including the
required prior misdemeanors in a felony DUI case and the materiality element
in a tax fraud case. Id. The instant case involves the denial of a jury trial as to
all elements of the charged offense without a valid waiver.


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