Opinion
Nos. 78-706, 79-24.
August 4, 1981. On Rehearing May 25, 1982.
Appeal from the Circuit Court, Dade County, Natalie Baskin, J.
Bennett H. Brummer, Public Defender and Louis M. Jepeway, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
These consolidated appeals result from appellant's non-jury conviction of petit theft. He seeks reversal of his conviction on the grounds that (1) his court appointed counsel was ineffective in that she failed to file a motion to suppress the torque wrenches which were the articles he was charged with unlawfully taking, (2) counsel failed to make a closing argument, and (3) the trial court erred in denying the defendant his right to trial by jury without first insuring that he was aware of his right to trial by jury and that the right was intelligently and voluntarily relinquished.
Grounds one and two arise from the denial of appellant's post-conviction motion for relief pursuant to Rule 3.850; ground three is a direct appeal to this court.
We have carefully considered appellant's points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. As to appellant's third point, we feel that notwithstanding the absence of a showing in the record that the rule in Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), was strictly followed, it is clear to us that defendant's constitutional rights were fully protected. If there were errors, they were not prejudicial. See Durcan v. State, 383 So.2d 248 (Fla. 3d DCA), pet. for rev. den., 389 So.2d 1109 (Fla. 1980); Quartz v. State, 258 So.2d 283 (Fla. 3d DCA 1972).
Affirmed.
ON REHEARING
These consolidated appeals arise from appellant's conviction of petit theft after a non-jury trial. The only point raised by Washington which merits discussion is his claim that the record does not reflect that he effectively waived his right to trial by jury.
When this case was first briefed and argued, the record on appeal showed only that the information was stamped "Waived Trial by Jury With Approval of Court and Consent of State," below which words appeared the signature "Willie R. Washington, Jr." Since the record was otherwise silent as to what prompted Washington to sign the waiver, the concern of this court's first opinion and a concurring opinion was the possible impact of Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980).
It was not until a rehearing en banc was granted that the State decided that it was appropriate to request that the record on appeal be supplemented and thereafter filed a transcript of a court proceeding which showed that Washington in open court, after discussion with and upon advice of counsel, waived his right to trial by jury and placed his signature below the waiver stamp on the information. We accordingly find that the error asserted by Washington is totally without merit.
We conclude by expressing our displeasure with the conduct of counsel on appeal. The transcript of the proceedings at which Washington waived trial by jury was available upon request at all times and could have been obtained and made part of the record with only the slightest effort. Yet Washington's counsel, for his part, briefed and argued the case as if no such court proceeding had occurred. The Assistant Attorney General, for his part, took the position (at least until it became apparent to him when rehearing en banc was granted that in light of Viggiani, there was a serious question whether affirmance of the conviction should stand) that it was not his obligation to furnish this transcript to the court. Indeed, until the record was supplemented, we were never informed that a hearing had taken place and that a transcript existed. Meanwhile, members of this court devoted considerable judicial labor in writing an opinion, a concurring opinion, considering and voting upon the petition for rehearing en banc, preparing for and hearing a totally unwarranted en banc argument, and, finally, issuing this opinion on rehearing.
Affirmed.
The record reflects that the information was stamped "Waived Trial by Jury With Approval of Court and Consent of State," below which words appeared the signature "Willie R. Washington, Jr." The record is otherwise silent as to what prompted Washington to sign the waiver. Thus, the present case is indistinguishable from Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), the impact of which, in my view, cannot be avoided by the majority's statement that notwithstanding the rule of Viggiani, "it is clear that the defendant's constitutional rights were fully protected." The Viggiani rule itself is that the defendant's constitutional right to trial by jury is not fully protected by the stamped and signed waiver without more.
The waiver was under former Rule 3.260, Florida Rules of Criminal Procedure, which required the express approval of the court.
However, since I believe Viggiani was wrongly decided, I agree with the majority to affirm.
In my view, Viggiani overlooked the proposition that proceedings are presumed to be conducted with regularity and that the trial court discharged its responsibility according to the law and in good faith. Vaccaro v. State, 152 Fla. 123, 11 So.2d 186 (1943); Wilson v. State, 164 So.2d 43 (Fla. 2d DCA 1964); Reese v. Wainwright, 600 F.2d 1085 (5th Cir. 1979).
". . . The presumption of regularity is a presumption of law which places a burden of going forward with contrary evidence upon the prisoner. On the other hand, the presumption of waiver available when the record recites waiver is a presumption of fact. The distinction between these explains why the latter is not operative if the record is silent despite the existing presumption of regularity." Wilson v. State, supra, 164 So.2d at 47 n. 4 (emphasis supplied).
Here the record recites waiver. That recitation, given the presumption of regularity, carries with it that the defendant was in court, there executed the written waiver, and did so knowingly, intelligently, and voluntarily. We do not, in other words, begin with a silent record and presume waiver; instead, we begin with evidence that a jury trial was waived, which is sufficient to show that it was properly waived, if the propriety of the waiver, as in the present case, is uncontradicted, and, moreover, not even challenged.