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1 Y MANDA TE FROM CIRCUIT COURT APPELLATE DIVISION ELEVTENTI-I JUDICIAL CIRCUIT MIAMI DADE COUNTY, FLORIDA APPELLATE CASE #:1-o5 AC VS. STATE OF FLORIDA CECILIO MARTINEZ This cause having been brought ~ E o }? t~i% $ '5 hi.». 1* cg? to this Court by appeal, and after due consideration the cotii';;ha A C \%. ;a"*':- \ 4% w i»\ *" \ Q A9 D1< - r; P at \\ ~»iiiii t' *.ai>* * a IX Vf. flfisxgwxip issued its opinion; ' ' YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opini on of this ' COURT attached hereto and incorporated as part of this ' order, and with the rules of procedure and laws of the STATE OF FLORIDA. Lower T 1~ibunal Case Number(s): M12o975 WITNESS the Honorable Abby Cynamon, Administrative Judge of the Appellate Division ofthe Circuit Court of the Eleventh Judicial Circuit of Florida and the sea] of the sa id Circuit ' ' Court at M' iami, this 1111 day of February, A True Copy At S' arve, ler Qurts l %,0;,, it, sea, BY? flfi.,; f51 1;*a=»? ~ :»._ k\ Uh Reven p. Depi om ; \(}: Fumuanm 0@t5%%F= L Q? RECcan A249 to MEY east? notafllfi. air ooirasa o " o " " Mandate rev. 10/22/2008

2 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING, X MOTION AND IF FILED, DISPOSED OF THE STATE OF FLORIDA, Appellant. IN THE ClRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNT-">_Y, FLORIDA " an av APPELLATE DIVISION CASE NO.: I-05 AC '}l we :: 0;; Q""E :7. zaét. ~z_,,ic,b N-If Ir-0 T -4 F W. x; >» M1 ;',-ii uvrsiiiz izz 'Z\H<l IZ i» 0.»,...»-- -C.--I )4 ><vq " M, W1 \i,.~.11 LC I.», tn; eiiimti Q1} mioiéiemtzi V. CECILIO MARTINEZ, ~~~~ I, H G, f,,_r F --élaa./_a,.;a/5* / -ll $1 OPINION FII if / /'1 F Appeal fromi the County Court, Miami-Dade County, Criminal D' ivision, ' ' Edward Newman, Judge. Kathy Fernandez Rundle, State Attorney, and Adam Charles Korn, Esq., Assistant State Attorney, for Appellant. Cecilio Martinez, pro se, for Appellee. Before: CARDONNE ELY, RODRIGUE PER CURIAM. Z, DIAZ, JJ. i

3 On September 7, 2012, the Appellee, Cecilio Martinez ( Martinez ), was arrested and charged by the Appellant, The State of Florida ( State ), with possession of not more than 20 grams of cannabis and resisting an officer without violence in contravention of Sections 89.l(6)(b) and of the Florida Statutes, respectively. At arraignment on October 19, 2012, Martinez, through counsel, demanded in writing a trial by jury, and the case was set. On January 9, 201, Martinez appeared pro se for his trial. The trial court called the case and was ready to try it without a jury, although Martinez had previously requested one. Proceeding nevertheless, the trial court asked the State to call its first witness, and when the State could not immediately produce the witness but asked the court to allow it to retrieve the witness, who had just previously checked in, the court denied the request. Thereafter, upon Martinez s motion for judgment of acquittal, an order of dismissal was entered, the court stating on the record that [The] State has apparently rested. They have no evidence. The State appeals the dismissal on grounds that it, as well as Martinez, was improperly denied a jury trial and that, in dismissing the case without allowing the State to retrieve its witness, the court abused its discretion. We agree with both the State s points and reverse the trial court s order of dismissal and remand the matter back to the trial court for further proceedings consistent herewith. The trial court s order of dismissal states that Martinez neither orally or [sic] in writing made a demand or otherwise invoked a right to trial by jury. Although it is wellsettled that the law does not at all require such (see Duncan v. I.nuisiana, 91 U.S it

4 (I968) (an accused facing criminal charges in state court has a right under the Sixth Amendment to a trial by jury)), solely on this basis, the trial court concluded that the matter could be tried by bench trial, and proceeded to do so. However, the record is clear that, contrary to the court s specific finding here, Martinez did in fact request a jury trial by written demand. As such, in order to proceed with a bench trial, Martinez, after having previously invoked his right to be tried by a jury, had to have legally waived this right. See Tucker v. State, 559 So. 2d 218 (Fla. 1990). The record is completely devoid of any evidence of waiver, a requirement. See Id. Moreover, pursuant to Florida Rule of Criminal Procedure.260, the State must have consented to any waiver of a jury trial by Martinez, and the record below is devoid of such as well. Rule.260 clearly recognizes and substantiates the State s interests in what may customarily be viewed as an accused s rights alone, giving the State the right to seek redress in this forum. Therefore, we must conclude that the trial court committed reversible error in conducting or attempting to conduct a bench trial where all the relevant facts and circumstances legally precluded such. With respect to the court s ultimate dismissal of the case because the State s first witness was not present in the courtroom at the precise moment when the court wanted to begin the trial, we are forced to find that this constituted an abuse of discretion, requiring reversal. See e. g. Stale v. Kalfimi, 968 So. 2d 599 (Fla. 2d DCA 2007); State v. Ottrock, 57 So. 2d 169 (Fla. 4th DCA 1991); State v. Macon, 584 So. 2d 218 (Fla. 4th DCA 1991). The record below contains no evidence that Martinez would have been prejudiced in any way if the court had continued the case for, literally, a few minutes in order for the State to attempt to retrieve its witness,

5 REVERSED AND REMANDED for further proceedin opinion. g consistent with this Cardonne Ely, Rodriguez, Diaz, JJ, concur. iris t~'1t..;itriii >tiw "ff? ti W. my at 4