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Westberry v. State

Florida Court of Appeals, Third District

February 14, 2018

Derrick Westberry, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing

         An Appeal from the Circuit Court for Miami-Dade County No. 15-13881, Milton Hirsch, Judge.

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

          Before LOGUE, LUCK and LINDSEY, JJ.

          LUCK, J.

         Derrick Westberry was convicted and sentenced at a nonjury trial for resisting an officer without violence and petit theft after stealing two eighteen-packs of beer from a convenience store. Westberry contends on appeal that the waiver of his jury trial right was not a knowing, voluntary, and intelligent one. We disagree, and affirm.

         On February 8, 2016, after discussing Westberry's bond status, the trial court asked about the trial date: "Now do we have future dates? Do we need sounding and trial dates?" The assistant state attorney told the trial court: "Judge, I have a February date. This is one of the cases where both the defense and I stipulated that we can do to a bench trial." The trial date was set by the clerk, and the hearing concluded.

         A month later, the case was ready for trial. Following up on the earlier request for a bench trial, the court had this colloquy with the defendant:

[The trial court]: Counsel are we in a position to proceed on Mr. Westberry?
[Defense counsel]: Yes, Judge.
[The trial court]: Okay. If we are going to go bench he has to waive his right to trial by jury on the record. This is on page 28 [of the calendar.] Derrick Westberry case F15-13881. . . . Mr. Westberry you understand that you have a right under two constitutions to have a trial by a jury?
[Westberry]: Yes.
[The trial court]: But you're going to waive that right and proceed to trial to the bench - trial to me?
[Westberry]: Yes.
[The trial court]: You have talked that over with [defense counsel]?
[Westberry]: Yes.
[The trial court]: Has he answered all your questions?
[Westberry]: Yes.
[The trial court]: Are you satisfied with his advice on this point?
[Westberry]: Yes, sir.
[The trial court]: And you believe that this is in your best interest?
[Westberry]: Yes, sir.
[The trial court]: This has to be your decision not his. Is this your decision?
[Westberry]: Yes, sir.
[The trial court]: So you're waiving trial by ...

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