Whirley v. StateWhirley v. State
Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince and Diane Barrs, Asst. Attys. Gen., E.J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for respondent.
PER CURIAM.
This cause, State v. Whirley, 421 So.2d 555 (Fla. 2d DCA 1982), is before us as conflicting with Powers v. State, 370 So.2d 854 (Fla. 3d DCA), review denied, 379 So.2d 209 (Fla. 1979). We have jurisdiction.
The Second District Court of Appeal quashed the circuit court‘s order and held that when one is charged with a violation of both a city ordinance and a state statute, one is entitled to a jury trial only if the penalty that could be imposed exceeds six months in jail and a $500 fine. Whirley, 421 So.2d at 556. The penalty for a first-time violation of
The jury trial provision of the sixth amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This provision is made binding upon the states through the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The most significant limitation on the right to trial by jury is the so-called petty offense exception which limits the constitutional guarantee of a jury trial to “serious” crimes and thus limits the literal application of the sixth amendment.
The conviction under consideration in Whirley is a petty offense that fits within none of the above classes; thus, the petitioner enjoys no federally protected right to a jury trial.
Our next consideration is whether there exists the right to a jury trial under the Florida Constitution or statutory laws. We made a constitutional inquiry in State v. Webb, 335 So.2d 826 (Fla. 1976), wherein the accused was charged with a violation of
Our Constitution, which became effective upon Florida‘s admittance to the Union in 1845, has contained similar language throughout our history. Although this right has been carefully protected and enforced by this Court, it is not unlimited. It has long been established that this provision guarantees the right to trial by jury in only those cases in which the right was recognized at the time of the adoption of the State‘s first constitution [citations omitted]. It does not extend to those cases where the right and the remedy with it were unknown at the time of the adoption of the first constitution. Pugh v. Bowden, 54 Fla. 302, 45 So. 499 (1907).
Turning to the case before us, it seems obvious that the right to a trial by jury has never been constitutionally required for violations of
Fla. Stat. § 325.12, F.S.A. , or for any other traffic law violation. While it is true that jury trials were provided for prior to the enactment of Florida‘s decriminalization law, the right was a statutory one only; it has never been, and is not now, a constitutionally required right.
Webb, 335 So.2d at 828. We find the Webb rationale applicable to those violations of
(1) A violation of any of the provisions of this chapter, except criminal offenses enumerated in section (4), shall be deemed an infraction, as defined in § 318.13(3).
(4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.072, s. 316.192, s. 316.193, or s. 316.1935 shall be punished as specifically provided in such sections.
Thompson, 387 So.2d at 543. The court concluded that these latter subsections make it clear that a violation of
The only arguable statutory right to a jury trial for what we find to be a petty offense is under
A person charged in court with a violation of a county or municipal ordinance for which no jury trial is provided may, when the violation of a county or municipal ordinance is also a violation of a state law, cause the transfer of the violation to the appropriate court in which a trial by jury is provided... .
That section, however, does not independently confer a right to a jury trial if none would exist for a violation of the state law alone. Its primary purpose is to prevent circumvention of a right to a jury trial for a state criminal offense by the device of charging an equivalent municipal or county ordinance violation.
In 1979 the legislature chose to give one charged with violating
(4) Any person charged with driving a motor vehicle while under the influence of intoxicating beverages to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure.
Because the legislature failed to grant a similar right in the case of one charged with driving or being in physical control of a vehicle with a blood alcohol level of 0.10 per cent or above, we conclude the omission was intentional. As long as the offense charged carries a penalty of no more than six months’ imprisonment and a fine of not more than $500, we see nothing to preclude the legislature from intending such a result. We therefore approve the district court‘s holding that petitioner was not entitled to a jury trial. We disapprove any language in Powers that conflicts with this opinion.
It is so ordered.
ALDERMAN, C.J., and ADKINS, McDONALD and EHRLICH, JJ., concur.
OVERTON, J., concurs specially with an opinion.
SHAW, J., concurs specially with an opinion.
BOYD, J., dissents with an opinion.
OVERTON, Justice, specially concurring.
The decision reached by the majority in this case is in accordance with the United
SHAW, Justice, specially concurring.
I concur because the controlling case law is clear and well established. However, if we were writing on a clean slate, I would hold that the United States Constitution means just what it says — in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. I would so hold regardless of the length of the imprisonment or whether the crime existed at the time the constitution was adopted. The history of this nation‘s development convinces me that the constitution was written with a view to the future. The American revolutionaries, who drafted and adopted the Bill of Rights, considered royal law, judge trials, and lawyer‘s law to be objectionable. They intended that no one in these United States faced with a criminal prosecution and desiring a jury trial be imprisoned unless first convicted by a jury of peers.
BOYD, Justice, dissenting.
I must dissent because I find that the appellant has a state constitutional right to a jury trial. Our constitution explicitly provides a right to trial by a fair and impartial jury in all criminal prosecutions.
Most states have constitutional provisions like Florida‘s, which guarantee a trial by an impartial jury in all criminal proceedings. A growing number of courts in these states are interpreting their constitutional provisions literally and expanding the right to a trial by jury beyond what the United States Supreme Court has held to be the minimum requirements under the federal constitution. See, e.g., Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954); State v. Sklar, 317 A.2d 160 (Me. 1974); People v. Goodwin, 69 Mich. App. 471, 245 N.W.2d 96 (Ct.App. 1976); City of Battle Creek v. Burnett, 55 Mich. App. 649, 223 N.W.2d 110 (Ct.App. 1974); Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825 (Minn. 1967); Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52 (1977); Franklin v. State, 576 S.W.2d 621 (Tex. Crim. App. 1978); State v. Becker, 130 Vt. 153, 287 A.2d 580 (1972); City of Pasco v. Mace, 98 Wash.2d 87, 653 P.2d 618 (1982); State v. Voss, 34 Wis.2d 501, 149 N.W.2d 595 (1967). But see Thomas v. State, 331 A.2d 147 (Del. 1975); City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535, cert. denied, 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970); McGowan v. State, 258 So.2d 801 (Miss.), cert. denied, 409 U.S. 1006, 93 S.Ct. 430, 34 L.Ed.2d 298 (1972); State ex rel. Cole v. Nigro, 471 S.W.2d 933 (Mo.), appeal dismissed, 404 U.S. 804, 92 S.Ct. 122, 30 L.Ed.2d 36 (1971); State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975); Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959); State v. Heath, 177 N.W.2d 751 (N.D. 1970); Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973). In construing our constitution we should not blindly abide by the federal standards nor strictly adhere to our past precedents. Our function is not to determine what our constitution has meant in the past, but rather to determine what it should mean now and in the future. Because of the
In applying these criteria, the most significant factor to consider is whether the defendant may be subjected to a sentence of imprisonment. Many states now hold that a defendant has a constitutional right to a jury trial whenever he may be subjected to incarceration. See, e.g., State v. Browder, 486 P.2d 925 (Alaska 1971); Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966); City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958); People v. Schomaker, 116 Mich. App. 507, 323 N.W.2d 461 (Ct.App. 1982); Cahill v. Fifteenth District Judge, 70 Mich. App. 1, 245 N.W.2d 381 (1976); City of Lima v. Rambo, 113 Ohio App. 158, 177 N.E.2d 554 (Ct.App. 1960); Murrah v. City of Oklahoma City, 620 P.2d 1335 (Okla.Cr.App. 1980); State v. Wikle, 291 N.W.2d 792 (S.D. 1980); Hendershot v. Hendershot, 263 S.E.2d 90 (W. Va. 1980).
It is of small moment to the citizen whether the period of incarceration is long or short; one day may be too long. Its results may be serious for one man and less so for another, depending upon a variety of circumstances. Furthermore, the great bulk of the citizenry encounters the judicial process most frequently in the prosecution of what have been called the petty offenses. Punishment inflicted at that level can be as harsh and as devastating to the life of the citizen as those meted out for more serious misdemeanors and for felonious conduct. Why should the remedial process be less just at one level than at another? We should be alert against attempts by government to whittle away fundamental rights on grounds of expediency. It is our constitutional duty to prevent such untoward consequences for the citizen at large.
Baker v. City of Fairbanks, 471 P.2d 386, 401 (Alaska 1970).
As the majority opinion points out, driving with a high blood alcohol content is considered a crime in this state. The fact that a person can be sentenced to serve a prison term for committing this crime makes it all the more imperative that the person be afforded a trial by an impartial jury. I fail to see why the constitutional right to a jury trial should depend on whether the maximum sentence that can be imposed is more or less than six months. The harsh reality of life in modern-day prisons, the consequent impairment of one‘s livelihood, and the social stigma of having served a prison term apply equally to those who serve one day in prison as to those who serve more than six months.
Fourteen years ago, this Court approved the use of the six-month distinction as a basis for denying persons accused of a misdemeanor of their constitutional right to an attorney. See State ex rel. Argersinger v. Hamlin, 236 So.2d 442 (Fla. 1970), rev‘d, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). I dissented in that case, stating:
Federal and State Constitutions are adopted for all of the people and must be applied uniformly. When a person is denied the exercise of constitutional rights, they are as meaningless to him as the shadow of a ghost. There is no magic yardstick by which we can determine liberty is more precious to one person than to another. From the inside all jails look alike.
Id. at 445 (Boyd, J., dissenting). A person facing a possible prison sentence should be afforded all of the constitutional rights designed and intended for the protection of the criminally accused, not just some of them.
Today the drinking driver is a major cause of death, loss of limb, and the destruction of property on the highway. Because of the consequences the offense of driving a motor vehicle while intoxicated must be considered male in se and cannot reasonably be characterized as minor, trivial, or petty. Society regards the offense as serious.
Parham v. Municipal Court in and For City of Sioux Falls, 86 S.D. 531, 538, 199 N.W.2d 501, 505 (1972). Accord Rothweiler v. Superior Court of Pima County; City of Cannon City v. Merris; State v. Hoben, 256 Minn. 436, 98 N.W.2d 813 (1959); Artis v. Rowland, 64 Wash.2d 576, 392 P.2d 815 (1964). I would therefore quash the district court‘s decision with directions to reverse appellant‘s conviction on the ground that she was denied her state constitutional right to a trial by jury.