author: DAUKSCH, Judge.

text:
    Gary George SMIGIEL, Appellant, v. STATE of Florida, Appellee.
    No. 82-404.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.
    Rehearing Denied Oct. 5, 1983.

      Edwin H. Duff, III, Daytona Beach, and Donald A. Lykkebak, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment of conviction and sentence of three years in prison for the crime of tampering with evidence, in violation of section 918.13, Florida Statutes.

The principal point on appeal is whether the trial court erred in denying the appellant’s motion to suppress evidence obtained from an allegedly illegal search and seizure.

Appellant, an attorney, and Larry Deem-er, his investigator, were charged by information on October 29,1981, with tampering with evidence alleged to have occurred on or about December 5, 1980. Appellant sought suppression of a magnetic tape eraser seized October 12, 1981, from appellant’s private law office pursuant to a search warrant, and to suppress all testimony concerning said evidence, any scientific reports or memoranda concerning said evidence and any evidence directly flowing from the search and seizure of said tangible evidence. The trial court denied appellant’s motion to suppress, both at a pre-trial hearing and before introduction of the tape eraser at the non-jury trial.

Appellant’s conviction was based upon the following facts. As defense attorney for Ralph Feathers in a drug case, the appellant sent a letter to an assistant state attorney requesting that arrangements be made for appellant and/or his investigator to listen to numerous incriminating tape recordings to be used against Feathers. Several conversations between Feathers and the state’s informant had been recorded by electronic surveillance and the tapes were important in the case against Feathers, for independent corroboration of an informant’s testimony.

Allen Kaye, a narcotics officer, testified that he went to appellant’s law office on December 4 and 5, 1980, to allow appellant to hear and have a court reporter take down and transcribe the tapes. Kaye had no knowledge of the conversations on the tapes because he had not taken part in that investigation. When Kaye arrived at appellant’s office at 9:00 a.m. on December 4th he, appellant, Deemer and Feathers listened to approximately four or five tapes. There were problems hearing them on Kaye’s small cassette player so Deemer volunteered to go home and get his better tape player. When he returned they listened to approximately five more of the tapes until 4:00 p.m. when appellant indicated that he would like to finish listening to the rest of the tapes the following day. The court reporter was not asked to return the next day.

When Kaye returned to appellant’s office at approximately 9:00 a.m. on December 5, 1980 he met with Deemer and they went to the office library where they had listened to the tapes the day before. They talked there for a few minutes and then Deemer invited him to have a cup of coffee in the room next door, which was approximately ten feet from the library. Kaye testified that he may have placed one or two of the tapes on the table before he left the library to have coffee with Deemer. Kaye said he checked the back door to the library leading down the stairway, and it was locked, but he did not check the library bathroom. According to Kaye, he and Deemer were in the secretary’s office talking and drinking coffee for approximately thirty minutes; he could continuously observe the door to the library, and did not see anyone go into the library.

Kaye recalled that after appellant and Feathers entered the room, they all went to the library and began listening to the remaining tapes. Three of them were totally inaudible and the remaining three had only a few words left on them. A court reporter was not present on December 5, 1980.

How the tapes became inaudible was the crux of the case — the state accused appellant of causing the problem. Officer Pat Green testified at trial that he had heard the tapes before they were taken to appellant’s office and they were not inaudible; he said he listened to them afterwards and they had been damaged or erased. Kaye and Green checked the evidence locker and found nothing which might have caused the erasure of the tapes and another policeman, Mahoney, said accidental erasure could be ruled out because certain tabs had been punched out to prevent this. The “chain of custody” was established to support the state’s position regarding the security of the tapes, except when at appellant’s office.

After his conviction for the drug offense, Feathers contacted the state attorney’s office concerning the events of December 4 and 5, 1980, and the destruction of several of the tapes. Feathers was promised nothing for the information except immunity for his conduct involved in destroying the tapes and he was told that he would not receive any reduction of his sentence.

Feathers testified that he listened to the tapes in his cocaine trafficking case in December of 1980 in appellant’s library and that because there was trouble with the tape recorder on the first day the court reporter had difficulty hearing the tapes. Feathers said that at one time during that first day Deemer went home to get his tape recorder/player. According to Feathers, he, appellant and Deemer passed the tapes around quite a bit so that the officer would get used to their handling the tapes. He said something was to be done with the tapes but they were not sure what. He said that late in the afternoon on December 4th, when it became apparent that the tapes were damaging to Feathers’ case, appellant called a recess until the next day.

After the officer left with the tapes the first day, appellant, Deemer and Feathers discussed how to destroy the tapes. Feathers testified that he and Deemer went to a hardware store, bought a magnet, came back to appellant’s office and put the magnet inside the tape recorder, but discovered that it could not erase a tape. He said that appellant then went over to the desk of his secretary, who was not there, picked up an electronic magnet and said, “this is the only thing that will really work.”

According to Feathers, when the three of them could not figure out how to keep the magnetic tape eraser under the conference table, appellant took the electronic eraser, put it behind the curtain in his library, plugged it in and said “we’ll leave it here and tomorrow morning we’ll erase the tapes.”

Feathers said that the agreed upon plan was for Feathers to hide in the bathroom while Deemer persuaded the officer to go out for coffee with him. Meanwhile, appellant would appear to be trying to locate Feathers. Feathers was to wait in the bathroom and as soon as Deemer and the officer left, Feathers was to leave the bathroom, use the magnetic tape eraser from behind the curtain, walk out the exit door and come back in the front door and join the others who were having coffee.

Feathers admitted that the tapes were erased by him on December 5th as planned, and identified the tapes presented as evidence at trial as appearing to be the same tapes he erased that day. Feathers said that after the event, appellant quoted him a price of $100,000.00 for his services, saying it was worth that amount because if anybody ever found out about the incident, it would be the end of his law practice.

Feathers admitted on cross-examination that the only reason he was testifying against appellant was because he had some faint glimmering of hope that something good would come out of it for him. He said that his sole motive for erasing the tapes was because appellant told him the state had no other evidence against him to sustain a conviction.

A joint stipulation containing the opinions of Dr. Harry Hollien, an expert in the field of communication science, was introduced into evidence. Dr. Hollien examined the tapes and the LaFayette magnetic tape eraser seized from appellant’s office and compared the specific switching signature of the LaFayette magnetic tape eraser with the signature found on the erased tapes and found them to be identical. Dr. Hollien was of the opinion that the tapes in question were not erased by the use of a common magnet but, rather, with an electronic tape eraser.

The claimed illegal search warrant to obtain the magnetic tape eraser was obtained by Officer Kaye. Officer Kaye attached a two-page sworn statement relating his recollection of the events on those dates, including the fact that Deemer lured him out of the library and that, upon listening to the remaining tapes, they were blank. This affidavit was made on October 8, 1981, after Officer Kaye became aware of a sworn deposition given by Feathers on October 8, 1981, which was largely corroborative of Kaye’s independent observations. In the deposition, Feathers detailed the plan to destroy the tapes which were the most damaging to his case. Feathers related appellant’s involvement and admitted erasing the tapes as planned. Feathers also said that to his knowledge the appellant still had the electric eraser used to erase the tapes in his office. The affidavit for the search warrant consisted of Kaye’s statements of his personal knowledge and recounted a summary of Feathers’ deposition.

The appellant contends that the lower court erred in denying his motion to suppress because the affidavit in support of the search warrant did not meet the “Aguilar— Spinelli test” for reliability and because the information in the affidavit was too stale to state probable cause sufficient to justify the issuance of a search warrant. It was ten months from the time the informant Feathers used, and presumably last saw, the tape eraser until he told the police about it. Appellant says this passage of time renders the affidavit for the search warrant insufficient to show probable cause that the tape eraser would still be at the office to be searched. Appellant also says Feathers was such a disreputable person that his testimony (affidavit or deposition) was unworthy of belief.

The Aguilar-Spinelli test has been disapproved by the court which developed it and that court has replaced it with a new test called the “totality of the circumstances” test in which the reliability, credibility and basis of knowledge of an informer are merely parts of all factors to be weighed when probable cause for a search warrant is under consideration. Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

A decision of the United States Supreme Court is binding upon the courts of our state and the law as it stands when the point is considered by this court is the law to be applied to the case. Williams v. State, 366 So.2d 817 (Fla. 3d DCA 1979), cert. denied 375 So.2d 912 (Fla.1979); Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), affirmed Martin v. Board of County Commissioners, 364 So.2d 449 (Fla.1978), appeal dismissed, 441 U.S. 918, 99 S.Ct. 2024, 60 L.Ed.2d 392. So, it is the Gates decision which controls this case and it is for us to decide whether the totality of the circumstances, demonstrated in the record to have been known by the warrant-issuing magistrate, constituted sufficient probable cause to support the search warrant. If so, then the search was lawful and the evidence (tape eraser) was properly admitted at trial. If not, then the evidence was inadmissible and a new trial, without the improper evidence, must be mandated.

While the ten .months from the use of the tape eraser and the issuance of the search warrant is an exceedingly long period of time, we cannot say this factor alone should cause us to declare the evidence unlawfully seized. The factual basis upon which the warrant was issued is substantial enough to comply with the requirements of Gates; or put differently, there was sufficient probable cause presented to the magistrate to satisfy the new, more “flexible, easily applied standard” announced in Gates. The Supreme Court has instructed all courts that:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed. Jones v. United States, ... 362 U.S. [257], at 271 [80 S.Ct. 725, at 736,4 L.Ed.2d 697].

Gates, - U.S. -;, 103 S.Ct. at 2332.

A review of the affidavit leads us to the conclusion that all of the facts taken together would lead to a reasonable belief that the tape eraser was a standard item used by appellant’s secretary in his law office. It is also reasonable to believe that Feathers’ deposition was substantially truthful since it was corroborated by a police officer who the magistrate could believe to be telling the truth. Because the magistrate could reasonably believe the sworn testimony of the police officer, and the sworn testimony of the co-conspirator, and because the magnetic tape eraser is an item ordinarily used in a modern law office, the magistrate could properly conclude that a crime had been committed by appellant in his law office and that an instrumentality or evidence of that crime could be found there. The fact that ten months had elapsed makes the probability that the magnetic tape eraser was still there certainly weaker than if the crime had occurred only hours or days before, but we cannot say it was improbable (or there was a lack of probable cause) that this office equipment was still there. It could also be argued that a lawyer who commits a crime might be smart enough to dispose of the evidence which could convict him and thus there was no reasonable belief the tape eraser was still in the office. But we prefer to rest on the proposition that a lawyer who commits a crime is not smart, and thus the magistrate could decide that the tape eraser had not been done away with and was still in the office.

Given all the facts and circumT stances, we affirm the order denying the suppression. We likewise reject appellant’s contentions that section 918.13, Florida Statutes is unconstitutionally vague and overly broad. The statute is clear and concise enough for common understanding. Finally, the evidence at appellant’s non-jury trial was legally sufficient to support the conviction.

AFFIRMED.

SHARP and COWART, JJ., concur.

      . This is the affidavit in full:
      On December 4, 1980, Volusia County Narcotics Task Force Agent Alan Kaye was requested to deliver to 533 Seabreeze Boulevard, Daytona Beach, Volusia County, Florida, certain evidentuary [sic] items, cassette recording tapes, reference case number 80-1786-CC, for the Defendant’s discovery of conversations included on these exhibits. A number of these tapes were reviewed in the presence of Task Force Agent Kaye, by the Defendant’s attorney, Gary Smigiel, with the Defendant Ralph Feathers, Larry Deemer, and an unidentified white/female believed to be Mr. Smigiel’s girlfriend present. The first three to four tapes were transcribed by a Court Reporter hired by Attorney Smigiel. At the start of the session, the tapes were being played on Agent Kaye’s portable cassette recorder, and then on a portable recorder belonging to Attorney Smigiel. Due to the fact that the Court Reporter was having a difficult time hearing what was being said, and the process was beginning to be rather time consuming, Mr. Deemer offered to go home and get his Lanier recorder. At that point, the Court Reporter was excused and Mr. Deemer went home to get his Lanier. Upon Mr. Deemer’s return, the session continued. At approximately 5:00 PM, after listening to approximately ten tapes which just happened to be the point where the evidence became rather incriminating for Attorney Gary Smigiel’s client, Mr. Smigiel requested we quit for the day, and continue the following day of December 5, 1980. The tapes were resealed in their container by Agent Kaye, and transported to the Volusia County Narcotics Task Force evidence vault.
      On December 5, 1980, Agent Kaye returned to the office of Gary Smigiel, Attorney at Law, located at 533 Seabreeze Boulevard, Daytona Beach, Florida, for the purpose of continued discovery on the tape recordings that were in evidence in reference to the case against Mr. Ralph Feathers. As Agent Kaye entered the office area, he was greeted by Mr. Larry Deemer who suggested that Agent Kaye put the package of tapes in the Law Library, where the tapes were reviewed the previous day, and join Mr. Deemer for a cup of coffee. The Library appeared to Agent Kaye to be a safe place to leave the tapes and that the tapes would be secure in that area. Alan Kaye did then join Mr. Deemer in having coffee in a room located next to the Law Library, where Agent Kaye would see if anyone entered the Library. The delay was caused due to the fact that the Defendant in this particular case, Ralph Feathers, and Attorney Smigiel had not yet arrived at the office. Approximately twenty minutes later, Agent Kaye was greeted by Mr. Feathers who appeared to have just arrived at the office along with Mr. Smigiel. At that time all parties entered the Law Library to review the tapes. The package was opened by Agent Kaye, the tapes were handed to Mr. Smigiel for replaying. At this time the audio portion of the tapes was destroyed, there were no conversations discernible on the remaining six tapes.
      On October 9, 1981, Narcotics Task Force Agent Alan Kaye became aware of a sworn deposition of Ralph Feathers made on October 8, 1981, who explained in detail the occurrences of December 5, 1980, whereupon the exhibits in question were tampered with. Mr. Feathers stated under oath that on December 4, 1980, after the first discovery session was completed, Attorney Smigiel, Larry Deemer, and Mr. Feathers talked and decided that the remaining six tapes were the most damaging to Feathers, and that they should be destroyed. At that point, Mr. Deemer and Mr. Feathers went to Dunn Brothers Hardware store to purchase an electro magnet. Mr. Feathers described the magnet to be small and barrel-shaped. When Mr. Feathers and Mr. Deemer returned, the magnet was placed in Mr. Deemer’s Lanier recorder and they attempted to erase a cassette tape. Realizing this would not work, Mr. Feathers stated that Mr. Smigiel come up with an alternate plan, which is as follows. Attorney Smigiel hid a magnetic tape eraser behind a curtain in the Law Library. When Agent Kaye arrived, Mr. Deemer was to get him away from the tapes, which he did. At that point, Mr. Feathers who was hiding in the bathroom in the library, would come out and erase the last six tapes, which he did. According to Mr. Feathers, Mr. Feathers also stated that Attorney Smigiel attempted to charge him a fee of one hundred thousand dollars for this service. Mr. Feathers also stated that to his knowledge Attorney Smi-giel still has the small barrel-shaped magnet, and the electric eraser used to erase the tapes in his office at 533 Seabreeze Boulevard.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . 918.13 Tampering with or fabricating physical evidence.—
      (1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
      (a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceedings or investigation; or
      (b) Make, present, or use any record, document, or thing, knowing it to be false.
      (2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Paul Louis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 82-846.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.
    Rehearing Denied Oct. 26, 1983.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The defendant, Paul Louis Thomas, was tried for robbery. At trial defense counsel moved for the court to allow Thomas to display his upper body to the jury without subjecting himself to cross-examination. One of the robbery victims previously had testified that she observed no marks, tattoos, or chest hair on the shirtless robber. The motion was denied and the defendant was convicted.

On appeal it is contended that denial of the motion for the defendant to silently exhibit his torso to the jury was reversible error. The argument is that such a physical exhibition, had it been required by the state, would not be considered testimonial and, therefore, would not violate the privilege against self-incrimination. See: Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, argues the appellant, the converse of that proposition is available to a defendant at trial: he may present non-testimonial “physical” evidence without losing his right against self-incrimination.

We must reject appellant’s argument for two reasons. First, the record fails to reveal that the motion was accompanied by any representation or proffer by the defense regarding the ostensible purpose of the proposed display. The trial judge should have been apprised of the basis for the motion in order to preserve his denial of that motion as an issue for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Sotola v. State, 436 So.2d 1001 (Fla. 5th DCA 1983); Llanos v. State, 401 So.2d 848 (Fla. 5th DCA 1981); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981).

Even had the denial of the motion been properly preserved for appellate review, there is another problem with the appellant’s contention. We agree that a physical display such as that suggested here would not be “testimonial.” See, e.g., United States ex rel. Mitchell v. Pinto, 438 F.2d 814 (3d Cir.1971), cert. denied, 402 U.S. 961, 91 S.Ct. 1622, 29 L.Ed.2d 124 (1971). But see, Machin v. State, 213 So.2d 499 (Fla. 3d DCA), cert. denied, 221 So.2d 747 (Fla.1968). But that fact does not, ipso facto, render such evidence admissible at trial in the absence of any qualifying predicate.

It would be difficult to fault a trial judge for denying a formal introduction of physical evidence with absolutely no testimony from any source to explain it or establish its relevance. Would it be proper to receive such evidence, absent any possible cross-examination, and leave to the jury’s uninformed speculation any and all questions concerning the consistency of the defendant’s physical appearance between the time of trial and the time of the crime, the purpose of the demonstration, and the possible explanations for any conflicts between testimony and appearance? Given these ambivalences, we could not determine the trial judge’s denial of the motion to be harmful error, if error at all.

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


author: FERGUSON, Judge. SCHWARTZ, Chief Judge

text:
    Anthony DUMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2293.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Rehearing Denied Nov. 7, 1983.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, and Jack Ludin, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BAS-KIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

The question presented for review is whether record evidence showing an information stamped “waived trial by jury with consent of state”, above which is the signature of the defendant, is sufficient, on a direct appeal from a judgment of conviction, to support a finding of an effective waiver of that constitutional right. We hold that it may be sufficient, and is in this case.

The following exchange appears in the record on the date the case was called for trial:

PROSECUTOR: This [case of Anthony Dumas] was set for a bench trial at eight o’clock. We did not try the case.
I believe we are in the process of plea negotiations at this time, and we may pass it.
Marilynn [defense counsel], is that correct?
DEFENSE COUNSEL: That is correct.
THE COURT: All right.
(Thereupon, other matters were heard, after which the following proceedings were had:)
THE COURT: Anthony Dumas.
DEFENSE COUNSEL: We are ready for trial.

The entire record on the waiver question consists of that colloquy and the signed written waiver on the information. On these facts, the present case is virtually indistinguishable from Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), rev. denied, 402 So.2d 613 (Fla.1981).

In Viggiani v. State, we held that a defendant did not effectively waive his right to trial by jury where the minimal requirements for a valid and effective waiver were not met, i.e., that the defendant’s signature be executed in open court and incorporated either in the transcript of the proceedings or otherwise made part of the record. We recede from Viggiani.

Where a record shows a waiver, although there is no further evidence that the waiver was executed in open court, there is a presumption that in the regular course of the proceedings the defendant, through his attorney, learned of, and waived his constitutional right to jury trial. The presumption which springs from defendant’s signature on the formal charging document denoting waiver of jury trial, is, more precisely, that the defendant was advised by his attorney of his right to trial by jury, the consequences of relinquishing that right, and any advantages to be expected therefrom, all of which makes for the knowing and intelligent waiver required by Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

The effect of the presumption is merely procedural, shifting the burden to the accused to produce evidence that the record showing of waiver, and all that it connotes, is untrue. The most important consideration given for the creation of a presumption of law is probability, i.e., that “proof of fact B renders the inference of the existence of fact A so probable that it is sensible and time-saving to assume the truth of fact A until the adversary disproves it.”

Defendant contends here that trial by jury is a fundamental constitutional right, guaranteed an accused, which is forfeited only by a waiver which is voluntary and intelligent, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); and Floyd v. State, 90 So.2d 105 (Fla.1956). There is no disagreement on that point. Significantly, he does not allege here that his waiver was not knowingly or intelligently given, nor that he was prejudiced by any failure of an in-court examination to ascertain whether the waiver of jury trial was knowing, free and intelligent. See United States v. Tobias, 662 F.2d 381 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). The real question presented is whether the record must affirmatively show that a defendant’s waiver of a right to trial by jury was in fact knowing and intelligent. In support of his argument that there is a constitutional requirement for an affirmative showing of jury waiver, appellant directs us to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) which holds that there is reversible error under the due process clause of the fourteenth amendment where the record does not disclose that the defendant voluntarily and understandingly entered a guilty plea.

That Boykin v. Alabama concerned a plea of guilty instead of a waiver of trial by jury is a crucial distinction. An analogy of Boykin to a waiver of jury trial was rejected by the Ninth Circuit in United States v. Reyes-Meza de Polanco, 422 F.2d 1304 (9th Cir.), cert. denied, 397 U.S. 1081, 90 S.Ct. 1536, 25 L.Ed.2d 817 (1970), which held that the record, containing a written form signed by the appellant and her trial counsel, adequately reflected a waiver of right to jury trial in the absence of the court’s personal interrogation of the appellant as to that waiver. A waiver of a jury trial does not foreclose an adversary proceeding on points of fact and law, nor does it preclude appellate review of the court’s findings; thus, it does not have the weighty consequence of a guilty plea. A guilty plea, as noted in Boykin v. Alabama, is essentially the conviction and involves the simultaneous waiver of numerous constitutional rights — the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. While a guilty plea ends in judgment, jury waiver is often a tactical decision. Jackson v. United States, 394 F.2d 114 (5th Cir. 1968); Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186 (1979).

A comparison of Florida Rules of Criminal Procedure 3.260 (waiver of jury trial) with 3.170(j) (responsibility of court on plea of guilty) evidences the Florida Supreme Court’s intent, consistent with Boykin v. Alabama, to establish more stringent requirements for a valid guilty plea than for a valid waiver of jury trial. Rule 3.170(j) requires that before a plea of guilty may be accepted, the judge shall determine, in open court and on the record, “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty.” In contrast, Rule 3.260 requires only a valid written waiver of jury trial by the defendant, with the state’s consent. It has never been a requirement in this state by statute, rule, or case law that the court inform the defendant of his right to a jury trial, or that the court interrogate the defendant as to the voluntariness of his waiver, or that there be a record examination of the defendant on his understanding of the waiver. See Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981) and cases collected therein.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), seven members of the United States Supreme Court held that where a defendant charged with first-degree murder had not been informed that intent to cause death is an essential element of second-degree murder — the offense to which he was advised to plead guilty — the conviction was properly set aside by the district court. Four members of the Court, in a concurring opinion, equated the guilty plea to a fact-finding process requiring that the defendant be advised of, or otherwise have knowledge of, the essential elements of the crime charged before entering a guilty plea to that offense. Two members of the Court dissented, expressing a contrary view that where the accused was represented by competent attorneys who, after consideration of all the evidence, advised him, as a tactical matter to plead to second-degree murder, the test to be applied in determining whether the defendant was properly so advised was one based on the day-to-day practices of reasonably competent attorneys in the business of representing criminal defendants. In other dicta, which set the stage for things to come, the majority in Henderson also noted:

[I]t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. 426 U.S. at 647, 96 S.Ct. at 2258.

In the more recent case of Marshall v. Lonberger,- U.S. -, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), the Court, by a 5-A majority, abandoned the longstanding view that presumptions of law were inadequate to satisfy the requirement that a plea of guilty be voluntary and intelligent. Lonberger contended at his Ohio murder trial that when he had entered a plea to aggravated battery in an unrelated Illinois case years earlier, he did not understand that the plea included a charge of attempted murder, as that offense was not specifically named in the formal statement of conviction and was not clearly referred to when the judge questioned Lonberger at the guilty plea proceedings regarding the offenses to which he was pleading guilty. Over that objection, the record of his prior conviction was admitted into evidence in both the trial and penalty phases of the Ohio first-degree murder prosecution. The United States Court of Appeals for the Sixth Circuit, in reversing the conviction, held that evidence of the attempted murder conviction should not have been given to the jury in Lonberger’.s murder trial. In reversing the Sixth Circuit and upholding the admission into evidence of the Illinois conviction, the United States Supreme Court embraced the dicta from Henderson v. Morgan, holding:

Under Henderson, respondent must be presumed to have been informed, either by his lawyers or at one of the pre-sen-tencing proceedings, of the charges on which he was indicted. Given this knowledge of the indictment and the fact that the indictment contained no other attempt charges, respondent could only have understood the judge’s reference to “attempt on [victim], with a knife” as a reference to the indictment’s charge of attempt to kill. -U.S. at-, 103 S.Ct. at 852-53, 74 L.Ed.2d at 661.

As noted by the minority in a dissent written by Justice Stevens, who also wrote for the Henderson court:

[T]his Court fails to explain its leap from notice of the charges to notice of which charges were included in the guilty plea. - U.S. at -, 103 S.Ct. at 857, 74 L.Ed.2d at 666.

Thus, Marshall v. Lonberger may be interpreted as a departure from Henderson v. Morgan, and perhaps from Boykin v. Alabama as well.

The guilty plea cases have been examined here only to illustrate that appellant’s argument from them by way of analogy is faulty. The Florida rules of procedure impose upon the court the duty to make a judicial inquiry for voluntariness at the time a guilty plea is offered, while these same rules clearly permit voluntariness to be presumed from the fact of a written waiver of jury trial which appears in the record. The waiver of a jury trial is a procedural matter which is governed by rules adopted by the supreme court. State v. Garcia, 229 So.2d 236 (Fla.1969).

Our determination on this direct appeal does not preclude defendant from seeking review of the waiver of jury trial by means of a motion for post-trial relief pursuant to Florida Rule of Criminal Procedure 3.850, whereby he may allege for the first time, as fundamental error, that the waiver was not voluntarily and intelligently made. See United States v. Hunt, 413 F.2d 983 (4th Cir.1969) (question of whether a waiver of jury trial was freely and voluntarily made may be raised by post-trial motion under 28 U.S.C. § 2255); United States v. Goodwin, 446 F.2d 894 (9th Cir.1971) (facts outside the record which would support appellant’s allegation that his waiver was not knowingly and voluntarily made must be presented in an application for post-conviction relief under 28 U.S.C. § 2255 rather than on direct appeal). On this point we are aware of a contrary decision by a panel of this court, Durcan v. State, 383 So.2d 248 (Fla. 3d DCA), rev. denied, 389 So.2d 1109 (Fla.1980), which holds that fundamental constitutional errors can be waived, for the purpose of a collateral attack on a conviction, if not raised in the trial proceedings or in the direct appeal. None of the cases cited in the opinion support the proposition. We hereby recede from Durcan v. State.

While ABA Standards for Criminal Justice, Waiver of Trial by Jury 15-1.2(b) (2d Ed.1980), cited by the dissent, unquestionably states the better practice, and courts are accordingly encouraged to make an inquiry of the defendant appear on the record, we think it unnecessary to adopt a prophylactic rule that the absence of a record inquiry as to waiver of jury trial, without more, requires reversing a conviction and ordering a new trial. This case particularly demonstrates why such a rule is impractical. Appellant did not attack the waiver in the trial court, there is nothing in the record which suggests that the waiver was not voluntary or intelligent and, more importantly, appellant has not even asserted by this appeal that the waiver was involuntary or unintelligent.

Affirmed.

SCHWARTZ, Chief Judge

(dissenting).

Everyone agrees that a defendant’s waiver of his fundamental right to trial by jury may be validly effected only when it is voluntarily and understandingly made with full knowledge of just what he is giving up. The dispute in this case does not therefore concern a substantive, but rather a vital and far-reaching procedural issue: whether a showing that a valid waiver has occurred should appear in the record of the cause itself as presented on direct appeal, or whether the defendant must negatively show in post-conviction proceedings that a non-jury trial was not properly agreed to. Judge Ferguson’s scholarly and comprehensive opinion establishes that an affirmative demonstration of a proper waiver is not required either by the United States Constitution, at least as presently interpreted by a sharply-divided Supreme Court in Justice Rehnquist’s opinion in Marshall v. Lonberger, - U.S. -, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), or by the terms of Fla. R.Crim.P. 3.260. I do not take issue with these conclusions. I do believe, however, that the court’s rejection of that principle, as an independent matter of our own authority to consider its merits, is neither a wise nor a sound decision. This conclusion is founded upon two distinct bases: one of lofty proportions; the other, perhaps more mundane.

I

Treating the grander consideration first, it is a fundamental, undoubted proposition of law that every presumption is indulged against the existence of a waiver, of a significant constitutional right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Since that is true, such a waiver, it is invariably said, cannot be presumed “from a silent record.” E.g., Boykin v. Alabama, 395 U.S. 238, 242, 243, 89 S.Ct. 1709, 1711, 1712, 23 L.Ed.2d 274 (1969). The court, however, has put these rules on their heads so that, on the one hand, an effective jury waiver is presumed on a tomblike transcript and record which contain only a signature written under circumstances which are entirely unknown and, on the other, the defendant is required to bear the burden to show otherwise in a Rule 3.850 or federal habeas corpus proceeding. See opinion of the court, at n. 5.

It seems to me that the only real, if totally unspoken, ground upon which this yawning difference may be rationally explained is that the right to a jury trial is not significant enough to justify the contrary, favored treatment and that it occupies a lower rung on the ladder of constitutional values than other more important ones such as, for example, the right to counsel, as to which a record like this is indisputably insufficient. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). There is no need to document the philosophical or historical reasons which support my complete disagreement with any such implied disparagement of the right to trial by jury or its relegation to a mere “tactical decision” in the course of trial. As was said in People v. Losacano, 29 Ill.App.3d 103, 329 N.E.2d 835 (1975):

Where the record is silent, as it is in this case, of anything from which it can be inferred defendant expressly and understanding^ waived his right to trial by jury, we believe such deficiency is not merely error, as conceded by the state in this case, and can not be regarded as merely harmless error having no substantial effect either on the defendant’s rights or the propriety of his conviction.
The right to trial by jury like the right to be represented by counsel are of such vital importance that the absence of prejudice can not be assumed where the record fails to disclose their proper waiver, [e.s.]

329 N.E.2d at 839-40. In Boykin, which, whether or not it remains an authoritative decision of the Supreme Court, is still, I take it, the law of Florida, McCrae v. State, 395 So.2d 1145, 1154 (Fla.1981), Justice Douglas pointed out:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.

395 U.S. at 243, 89 S.Ct. at 1712 (footnote omitted). Applying this reasoning, I fail to see how we can presume a waiver of any one of these rights, especially the one which is probably the most significant, from the record before us.

II

Turning to the more practical reason for my dissenting view, the effect of the majority’s conclusion is to relegate to post-trial proceedings, conducted long-subsequent to the actual events, the determination of whether, in fact, before the waiver was signed

the defendant was advised by his attorney of his right to trial by jury, the consequences of relinquishing that right, and any advantages to be expected therefrom, all of which makes for the knowing and intelligent waiver required by Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

Opinion of the court, p. 249 (footnotes omitted). Thus the court has encouraged, indeed necessitated, just what was so aptly characterized in Boykin as the “spin-off of collateral proceedings that seek to probe murky memories,” 395 U.S. at 244, 89 S.Ct. at 1713, and which, for that reason, should instead be forestalled or obviated altogether. In this present instance, the disadvantages of that technique are exacerbated by the fact that the issue later to be determined will likely involve the resolution of obviously undesirable disputes between the defendant and his lawyer about who said what to whom in the hallway or the holding cell or in whispered conversations at counsel table months or years before. See, e.g. Krueger v. State, 84 Wis.2d 272,267 N.W.2d 602 (1978). Moreover, the professional self interest of the (now-previous) attorney will be in unseemly direct conflict with that of his former client, who must, in turn, establish that his lawyer did not act with competence. Since all this can be avoided in almost every case by the simple expedient of a brief colloquy between the court and the defendant spread upon the record, the most elementary principles of sound judicial administration dictate the adoption of that requirement.

Based on many of these considerations, a number of courts have indeed imposed such a colloquy requirement on direct appeal, either in the absence of a controlling rule, e.g., Rice v. People, 193 Colo. 270, 565 P.2d 940, 942 (1977) (en banc) (“That expensive and time consuming process [of proceedings on remand] is rarely necessary where the record reflects a personal expression of the defendant’s desire to waive trial by jury.”); State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975); Ciummei v. Commonwealth, 378 Mass. 504, 508, 392 N.E.2d 1186 (1979), or even though the applicable rule, like Florida’s, does not go nearly that far. United States v. Scott, 583 F.2d 362 (7th Cir.1978); United States v. Delgado, 635 F.2d 889 (7th Cir.1981) (requiring complete interrogation by trial judge in open court although Fed.R.Crim.P. 23(a) provides only for signed written waiver); Walker v. State, 578 P.2d 1388 (Alaska 1978); see United States v. David, 511 F.2d 355 (D.C.Cir.1975); People v. Losacano, supra; see also Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979); People v. Corbin, 109 Mich.App. 120, 310 N.W.2d 917 (1981); Hawkins v. United States, 385 A.2d 744 (D.C.App.1978); State v. Kehoe, 59 Ohio App.2d 315, 394 N.E.2d 1022 (1978). I would follow these decisions, and, like Rice and Irving, adopt ABA Standards for Criminal Justice Waiver of Jury Trial 1.2(b), which states:

The court should not accept a waiver unless the defendant, after being advised by the court of his or her right to trial by jury, personally waives the right to trial by jury, either in writing or in open court for the record.

Ill

In my opinion, therefore, the very minimal requirements of Viggiani should be considerably expanded, and certainly not eliminated as the majority holds. Under no circumstances can I agree to taking the remarkably retrogressive step, one which is totally unprecedented in our state, of approving a jury waiver on the strength of a name scrawled on a piece of paper alone. I would grant Dumas a new trial.

BASKIN, J., concurs.

      . We ordered a rehearing en banc on the court’s own motion pursuant to Florida Rule of Appellate Procedure 9.331(c) in order to maintain uniformity in the court’s decisions. A potential for conflicting decisions is apparent from Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), rev. denied, 402 So.2d 613 (Fla. 1981), and Washington v. State, 414 So.2d 522 (Fla. 3d DCA 1982). Although at the time the original opinion in Washington v. State was written the facts known to the court were indistinguishable from the facts present in Viggiani v. State, the court, finding that the defendant’s constitutional rights were fully protected, upheld the waiver as valid. Since that holding was not influenced by the important factor, noted by the court itself — that the waiver was executed under former Rule 3.260, Florida Rules of Criminal Procedure, which required court approval — Washington v. State, as originally written, is incorrect. In addition, the concurring opinion in Washington proposed that from a record recitation of waiver it is presumed that the defendant executed the written waiver in court, knowingly and intelligently — a statement which expressly conflicted with Vig-giani. On rehearing in Washington it was for the first time brought to the court’s attention that the defendant’s waiver of jury trial was in fact in open court and with the advice of counsel.

      . In 1972, a revision of Florida Rule of Criminal Procedure 3.260 abolished the requirement for court approval of a jury trial waiver. Nevertheless, cases decided after 1972 have continued to apply that standard by requiring as a substitute for court approval either the execution of the written waiver in open court or an oral acknowledgement of the waiver in open court by the defendant or his attorney. Washington v. State, Viggiani v. State, Groomes v. State, 401 So.2d 1139 (Fla. 3d DCA 1981); Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981); Durcan v. State, 383 So.2d 248 (Fla. 3d DCA), rev. denied, 389 So.2d 1109 (Fla. 1980); Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977); Kinser v. State, 291 So.2d 80 (Fla. 3d DCA), cert. denied, 297 So.2d 832 (Fla. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975). The previously cited cases rely upon Quartz v. State, 258 So.2d 283 (Fla. 3d DCA), cert. denied, 263 So.2d 825 (Fla. 1972), decided while the former Rule 3.260 was still in effect, which held that the above-described substitutes for approval of the court constitute full compliance with the rule as it existed prior to revision. In light of the rule change which dispenses with the requirement for court approval, it is no longer necessary in post-1972 cases that the waiver be executed in court or orally confirmed on the record. The execution of the waiver in a hallway outside the courtroom, which is not prohibited by the present rule, would not make the waiver, as a practical matter, any less intelligent. So the place where a defendant is informed of his rights, and makes the knowing and intelligent decision to waive jury, is no longer of consequence.

      . The authenticity of defendant’s signature above the stamped waiver is not challenged.

      . The presumption of law that a waiver of jury trial was made with knowledge and understanding cannot arise where a defendant makes the waiver without the benefit of counsel. Such was the situation in Enrique v. State, 408 So.2d 635 (Fla. 3d DCA 1981), rev. denied, 418 So.2d 1280 (Fla. 1982), which held, on direct appeal, that waiver of jury trial was not shown to have been knowingly and intelligently made despite the existence of a written waiver. The result in Enrique is consistent with our holding here as (1) Enrique was not represented by an attorney, (2) there was no adequate on-the-record inquiry by the court, and (3) there was no indication that defendant obtained from other sources the information necessary to make for an intelligent waiver.

      . The presumption discussed in Washington v. State, 414 So.2d 522, 523 (Fla. 3d DCA 1982) (Pearson, J., concurring), that proceedings are conducted with regularity and that the trial court discharged its responsibility according to the law and in good faith, is of no assistance here. Since under the revised Florida Rule of Criminal Procedure 3.260 trial by the court is mandatory when the defendant and the state agree, there is no act of the court, incident to the waiver, to which the presumption of regularity will attach. Moreover, Wilson v. State, 164 So.2d 43 (Fla. 2d DCA 1964), upon which the concurrence in Washington v. State relies, and King v. State, 157 So.2d 440 (Fla. 2d DCA 1963), cited by Wilson v. State, involves collateral attacks upon judgments of conviction and sentence to which the presumption of regularity is applied. Cases citing King v. State in support of the presumption of regularity are collateral attack cases, nor direct appeals. E.g., Dykes v. State, 162 So.2d 675 (Fla. 1st DCA 1964). In direct appeals there is no reason for the presumption of regularity and there is considerable doubt that it has any application. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (when collaterally attacked, as habeas corpus, a judgment of the court carries a presumption of regularity).

      . McCormick, Handbook of the Law of Evidence § 343 (2d ed. 1972).

      . Justice Harlan, in a strong dissent in Boykin v. Alabama, joined by Justice Black, was of the view that a conviction is constitutionally valid despite the omission of any judicial inquiry of record at the time of the plea, subject only to a collateral proceeding to determine whether the plea was actually voluntary. Where voluntariness, an essential element of a valid guilty plea, does not affirmatively appear from the record, the dissent would, of necessity, indulge in a presumption of fact in order to affirm the conviction — a position consistent with the Marshall v. Lonberger holding.

      . Because the right of an accused to trial by jury is fundamental, Floyd v. State, 90 So.2d 105, 106 (Fla. 1956), an infringement of that right constitutes fundamental error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Clark v. State, 363 So.2d 331 (Fla.1978), cited in Durcan v. State, 383 So.2d 248, 249 (Fla. 3d DCA) (Baskin, J., dissenting), rev. denied, 389 So.2d 1109 (Fla.1980).

      . Cf. Berry v. State, 203 So.2d 336 (Fla. 2d DCA 1967) (where defendant, after waiving trial by jury, filed a motion in the trial court to set aside the waiver challenging its voluntariness on the basis that when he asked the court for a further continuance it was granted on the condition that he waive trial by jury, and where the record disclosed that none of the defendant’s requests for continuance was motivated by a design to delay trial, a new trial by jury was required); United States v. David, 511 F.2d 355 (D.C.Cir.1975) (where the record suggested that defendant’s waiver of jury trial was not voluntarily and knowingly made, based on defendant’s substantial psychiatric history, a psychiatrist’s original report that defendant was incompetent to stand trial, and defendant’s counsel’s expressed concern to the trial court as to defendant’s competency to stand trial and ability to knowingly waive jury trial, a new trial was necessary).


author: DANIEL S. PEARSON, Judge.

text:
    Louis NOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1766.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Louis Nova, in pro. per.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1982, Nova moved under Florida Rule of Criminal Procedure 3.850 to vacate his first-degree murder conviction and sentence imposed thereon. The essence of his complaint was that he agreed to be tried by a jury composed of six instead of twelve persons in exchange for the State’s agreement that his maximum punishment if convicted would be twenty years and that this agreement was dishonored when, upon Nova’s conviction, the court imposed a life sentence with the requirement that he serve no less than twenty-five years before becoming eligible for parole.

Appended to Nova’s Rule 3.850 motion was a copy of the transcript of the proceedings held prior to the commencement of his 1976 trial. The transcript appears to support Nova’s version of the events leading to his waiver.

“[Assistant State Attorney]: Before we proceed in picking a jury there has been a stipulation on behalf of the State and defense. The State would waive the death penalty making it punishable by 20 years, if convicted. In consideration thereof, the defense would waive a twelve man jury and we would try it by a six man jury.
“The Court: Is that stipulated to by both sides?
“[Defense Counsel]: We will stipulate.
“The Court: You understand that you have a right to be tried by a twelve man jury?
“The Defendant: Yes.
“The Court: Are you willing to give that right up?
“The Defendant: Yes, sir.” (emphasis supplied).

The trial court determined that the files and records conclusively showed that Nova was entitled to no relief and denied his motion without hearing.

I

Clearly, the specific relief sought by Nova in his pro se motion, that is, the imposition of a sentence of no more than twenty years in accordance with the agreement, could not be afforded him. Where an accused is convicted of a crime for which the Legislature has prescribed a mandatory sentence, a trial court is not empowered to impose any lesser sentence. State v. Sesler, 386 So.2d 293, 294 (Fla. 2d DCA 1980); see also State v. De La Rosa, 414 So.2d 26 (Fla. 3d DCA 1982); State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982). Of course, this is not to suggest that a court will condone the State’s repudiation of its agreement, see James v. State, 305 So.2d 829 (Fla. 1st DCA 1975), but merely to state that when the agreement is one which cannot be legally enforced, and, as here, the defendant is not irrevocably prejudiced by relying on the agreement, the defendant’s remedy for its violation cannot be to compel its performance. See Pringle v, State, 341 So.2d 535 (Fla. 2d DCA 1977); Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972).

However, Nova’s inappropriate choice of relief cannot be a basis for affirming the trial court’s denial of his motion. As Rule 3.850 itself notes, it is only when “the motion and the files and records in the case conclusively show that the prisoner is entitled to no’relief” that the motion can be denied without hearing. Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981); Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980); Barfield v. State, 348 So.2d 621 (Fla. 4th DCA 1977); Fla.R.App.P. 9.140(g). Obviously, the absence of the remedy of specific performance does not mean that the defendant is entitled to no relief. If a defendant in good faith relies on an agreement by the prosecution, courts will not let the defendant be prejudiced as a result of that reliance. Pringle v. State, 341 So.2d at 537; Odom v. State, 370 So.2d at 771; Barker v. State, 259 So.2d at 205; United States v. Aguilera, 654 F.2d 352 (5th Cir. 1981); United States v. Goodrich, 493 F.2d 390 (9th Cir.1974). In the present case, if Nova, as he asserts, waived his right to be tried by a twelve-person jury in reliance on the State’s promise of a sentence of no more than twenty years, then the waiver and conviction can be vitiated and the defendant afforded a new trial.

II

Since the motion itself did not disentitle Nova to some relief, we turn, as did the trial court, to the files and records to see if they justify the denial of relief without hearing.

As we have noted, Nova was convicted of first-degree murder in 1976 by a six-person jury. Through counsel, he appealed that conviction to this court. In that appeal, Nova’s counsel raised two points, neither of which concerned the waiver of the twelve-person jury. See Nova v. State, 346 So.2d 1214 (Fla. 3d DCA 1977), quashed, State v. Nova, 361 So.2d 411 (Fla.1978). In 1981, Nova, now without counsel, filed his first Rule 3.850 motion by filling out a prescribed form. In the 1981 motion, he stated as his ground for relief that he “was tried in violation of Florida Constitution and Rules of Criminal Procedure” in that he was “convicted of first degree murder by a jury of six persons.” In answer to the request on the form that he give his reason why such ground was not previously presented on direct appeal, he stated, “Inadequate assistance of appellate counsel.” The 1981 motion was denied upon the trial court finding that the allegations did not constitute legal grounds for relief.

Nova appealed the denial of his 1981 motion, and this court, per curiam, affirmed, merely citing to Knight v. State, 394 So.2d 997, 1001 (Fla.1981), and Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980). See Nova v. State, 414 So.2d 629 (Fla. 3d DCA 1982). The trial court, presented with the motion which is the subject of this appeal, read our decision on Nova’s 1981 motion to mean that we had already ruled on Nova’s present claim.

But the most that can be said of our decision in Nova v. State, 414 So.2d 629 (Fla. 3d DCA 1982), given the posture of that case, was that we held that counsel, whether at trial or on appeal, was not ineffective in failing to urge that under any circumstances a person cannot be convicted for a capital crime by a twelve-person jury. Since the law is clear that a person can be convicted of a capital crime in this state by a jury of less than twelve, provided there is a valid waiver of the right to a twelve-person jury, see State v. Garcia, 229 So.2d 236 (Fla.1969); Roth v. State, 385 So.2d at 115, Nova’s claim that counsel was ineffective for failing to assert that a jury of less than twelve persons was ipso facto unlawful was correctly denied.

However, Nova’s 1982 3.850 motion differs from his prior motion. He no longer contends that a twelve-person jury is never waivable, but now says that his waiver of a twelve-person jury in reliance on a promise of a twenty-year maximum sentence was nullified when he received the legislatively required greater sentence. His fall-back contention is that either trial counsel or appellate counsel, or both, were ineffective in failing to properly raise the invalidity of his waiver. His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova’s explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. Since we decide, infra, that Nova’s primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova’s fall-back contentions concerning the ineffectiveness of his counsel need not be reached.

III

As we have stated, a fundamental error may be raised for the first time in a Rule 3.850 motion notwithstanding that it could have been, but was not, raised on direct appeal. O’Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975), overruled on other grounds, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); see also Dozier v. State, 361 So.2d 727 (Fla. 4th DCA 1978) (holding that a fundamental error may be collaterally attacked, but incorrectly holding that a comment on defendant’s right to remain silent is a fundamental error, Clark v. State, 363 So.2d 331 (Fla.1978)); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977) (where a fundamental error has been raised and rejected on direct appeal, it may still, with leave of the appellate court, be considered in a subsequent 3.850 motion).

Nova’s claim that his waiver of a twelve-person jury was invalid alleges a fundamental error. A defendant in a capital case in Florida is entitled to a twelve-person jury as a matter of state constitutional law. Article I, Section 22 of the Florida Constitution secures the right of trial by jury and provides that “the number of jurors, not fewer than six, shall be fixed by law.” The number of jurors fixed by law to try all capital cases is twelve. Fla.R.Crim.P. 3.270.

In Cotton v. State, 85 Fla. 197, 95 So. 668 (1923), the defendant was tried and convicted of first-degree murder. Before trial the defendant timely filed a plea in abatement, challenging the indictment as having been returned by a grand jury which contained a person incompetent to serve. His request that this challenge be determined by a jury of twelve was denied, and his challenge to the make-up of the grand jury was submitted to a six-person jury. The Florida Supreme Court reversed Cotton’s conviction, holding that a trial on the defendant’s plea in abatement required a jury of twelve.

“The trial on the plea in abatement was not a trial of ‘other criminal cases’ as differentiated from ‘capital cases.’ Sec. 6008, Rev.Gen.Stat. It was not the trial of a criminal case less than a capital case, nor was it the trial of a civil cause. The statute authorizing a trial by a jury of six men is therefore not applicable. It follows inescapably that the defendant was entitled to a trial on the issue made by his plea in abatement by a jury of twelve, and that a trial by a jury of six amounted to a denial to him of a jury trial such as he is entitled to under the law.
“[A] trial of the issue made by the plea in abatement by a jury of a less number than the law prescribes deprived the defendant of a right he was entitled to claim, and did claim, under the express provisions of the law of the land. Denial to him of this right by the court results in a lack of due process of law that is commanded by the Constitution.” Cotton v. State, 85 Fla. at 202, 95 So. at 670.

Thus, Cotton holds that so long as a twelve-person jury is fixed by law to try a person accused of a capital crime, the right to a jury of that number is constitutional and an invasion of that right a denial of due process.

Concededly, not all invasions of constitutional rights are fundamental errors. See, e.g., Clark v. State, 363 So.2d 331. Error which is said to be fundamental is, among others, one which “reaches down to the legality of the trial itself,” Hamilton v. State, 88 So.2d 606, 607 (Fla.1956); Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967); involves a violation of a defendant’s rights which “will always be harmful, and it is very difficult for a court to determine when it is not,” Demps v. State, 416 So.2d 808, 810 (Fla.1982), quoting United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir. 1979); in short, one that goes to the essence of a fair and impartial trial, State v. Jones, 377 So.2d 1163 (Fla.1979); Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972). Because “[t]he right of an accused to a trial by jury is one of the most fundamental rights guaranteed by our system of government,” Floyd v. State, 90 So.2d 105, 106 (Fla.1956), and is the cornerstone of a fair and impartial trial, Florida Power Corporation v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967), an infringement of that right constitutes fundamental error. Such an infringement, and thus fundamental error, occurs not only when an accused is made to proceed to trial with no jury at all, but, as well, when he is made to proceed to trial with less jurors than he is entitled to by law. United States ex rel. Burnett v. People of the State of Illinois, 619 F.2d 668 (7th Cir. 1980); United States v. Taylor, 498 F.2d 390 (6th Cir.1974).

Of course, it is well established that the right to a jury trial or a jury of twelve persons in a capital case may be waived, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1965); State v. Garcia, 229 So.2d 236; Zellers v. State, 138 Fla. 158, 189 So. 236 (Fla.1939); Groomes v. State, 401 So.2d 1139 (Fla. 3d DCA 1981); Roth v. State, 385 So.2d 114. But in order for the waiver of this, as any other, constitutional right to be valid under the due process clause, the waiver must be “an intentional relinquishment or abandonment of a known right,” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 1712 n. 5, 23 L.Ed.2d 274, 280 n. 5 (1969) (“if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.”).

“The right to trial by jury is a constitutional right, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 144[4], 20 L.Ed.2d 491 (1968); Molfetas v. State, 323 So.2d 598 (Fla. 3d DCA 1975). As in the case of the waiver of any constitutional right, the waiver of trial by jury must be shown to have been knowingly and intelligently made.” Enrique v. State, 408 So.2d 635, 637 (Fla. 3d DCA 1982).

Where the right to jury trial is waived in connection with a guilty plea, it is essential that the waiver be voluntarily and intelligently made. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Similarly, where the waiver of jury trial is, as in the case at hand, a waiver of the right to the full number of jurors required by the law, the voluntary and intelligent nature of the waiver is equally essential.- United States v. Taylor, 498 F.2d 390 (defense counsel’s stipulation that trial could proceed with eleven jurors ineffective where no showing that defendant himself knowingly and intelligently waived right to jury of twelve); see People v. Illinois, 619 F.2d 668. In either instance, whether the right to jury trial is surrendered altogether or the right to a jury trial by the constitutionally fixed number of persons is surrendered, if the waiver is the result of a bargain later broken or a misapprehension concerning the sentence to be imposed, the waiver is involuntary and the attendant conviction must be set aside. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Griffith v. Wyrick, 527 F.2d 109 (8th Cir.1975); Davy v. State, 356 So.2d 18 (Fla. 4th DCA 1978); Britt v. State, 352 So.2d 148 (Fla. 2d DCA 1977).

IV

Finally, we consider whether Nova’s motion could have been properly denied by the trial court because Nova knew or should have known as of March 1976 of the ground now asserted. As we have already stated, n. 3 supra, so long as a Rule 3.850 motion passes the singular test of raising a new ground and is otherwise appropriate under that rule, the fact that such ground was known to the defendant and could have been but was not made the subject of a prior 3.850 motion is no basis for denying relief. Whitney v. State, 184 So.2d 207 (Fla. 3d DCA 1966), and cases collected therein; Lawson v. State, 231 So.2d 205; Richardson v. State, 202 So.2d 137; Weeks v. State, 201 So.2d 764; Hall v. State, 183 So.2d 277. No matter how many prior applications for collateral relief a prisoner has made, the prisoner is entitled to consideration of his application if it presents a different ground for relief. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068,10 L.Ed.2d 148. This principle is qualified only to the extent that the State may show that the later application abuses the remedy, id., or that the prisoner’s delay in bringing the later application demonstrates a lack of due diligence resulting in prejudice to the State, see Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980). No such claims were made by the State in the present case.

V

Accordingly, we reverse the trial court’s order denying Nova’s 3.850 motion without hearing and remand the cause with directions that a hearing be held thereon. At such hearing the State may attempt to show, as it now contends, that the 1976 transcript does not accurately reflect the stipulation between the parties, or that even if the transcript is accurate, Nova knowingly and intelligently waived a twelve-person jury, that is, despite the statement in the transcript, was fully aware that if convicted he would be sentenced to life imprisonment with the requirement that he serve no less than twenty-five years before becoming eligible for parole. The State may also, if appropriate, raise the defenses of abuse of remedy, see Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, and laches prior to such hearing.

Reversed and remanded.

      . See § 775.082, Fla.Stat. (1975).

      . Presumably, Nova’s indecision about which of his counsel could be charged with ineffectiveness lies in his uncertainty over whether his asserted invalid waiver of a twelve-person jury is fundamental error. If the error is not fundamental, then it could not have been raised on direct appeal by his appellate counsel unless preserved by his trial counsel; if fundamental, the appellate counsel could have raised the error, despite any shortcomings of trial counsel.

      . Were we to address Nova’s present ineffective assistance of counsel claim, we would conclude, contrary to the trial court’s conclusion, that the claim was not foreclosed by Nova’s 1981 3.850 motion, which also alleged ineffective assistance of counsel. While it is true that both motions allege ineffectiveness of counsel, the nature of the ineffectiveness differs. Thus, under the decided cases, it is clear that the motion under review presents a different ground for relief than that previously ruled upon. Compare Ferranto v. United States, 507 F.2d 408 (2d Cir.1974) (ground that presentence investigation report was inaccurate as to the defendant’s prior record different from ground that same report included counselless conviction); Hilbrich v. United States, 406 F.2d 850 (7th Cir.1969) (ground that defendant’s confession inadmissible for failure to take him before magistrate different from ground that confession inadmissible because coerced), with Fortin v. State, 203 So.2d 207 (Fla. 3d DCA 1967) (ground that guilty plea entered on understanding defendant would receive five-year sentence same as ground in prior motion that guilty plea entered because of promise of leniency). See generally Sanders v. United States, 371 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Lawson v. State, 231 So.2d 205 (Fla. 1970); Flores v. Wainwright, 240 So.2d 816 (Fla. 2d DCA 1970); Richardson v. State, 202 So.2d 137 (Fla. 3d DCA 1967); Weeks v. State, 201 So.2d 764 (Fla. 3d DCA 1967); Hall v. State, 183 So.2d 277 (Fla. 3d DCA 1966); Piehl v. State, 173 So.2d 723 (Fla. 1st DCA 1965), quashed on other grounds, 184 So.2d 417 (Fla.1966). Therefore, Nova’s present motion cannot be denied, as it was by the trial court, on the basis that it was a second and successive motion asserting the same ground. Of course, to the extent that the motion claimed ineffectiveness of appellate counsel, the trial court would have been correct in denying the motion on the ground that such a claim must be addressed by the appellate court through a petition for writ of habeas corpus.

      . We recognize that this court in Durcan v. State, 383 So.2d 248 (Fla. 3d DCA 1980), rejected the defendant’s contention “that the right to jury trial is a fundamental constitutional right that could not have been waived by failure to urge it in the direct appeal from the conviction.” Since the court went on to affirm the trial court’s denial of the defendant’s 3.850 motion on the ground that the evidence in the collateral attack proceeding showed that the defendant had voluntarily waived his right to jury trial, its statement that 3.850 relief was unavailable because of a failure to raise this issue on direct appeal could be considered dicta. But even were this statement considered to be more than dicta, the view of the Durcan majority that a “fundamental” right is waived by failing to raise it on direct appeal is totally unsupported by any case and finds no support in the cases relied on in Durcan. The cases cited by the majority, none of which involved fundamental error, simply stand for the proposition that a violation of a constitutional right which is not of such magnitude as to be fundamental error is waived by a failure to raise it on direct appeal and will not support a subsequent collateral attack. But the distinction between mere constitutional error and fundamental error is well recognized, see, e.g., Clark v. State, 363 So.2d 331 (Fla.1978); Sanford v. Rubin, 237 So.2d 134 (Fla.1970), and the waiver rule applies only to the former. It is therefore fitting that we have today receded from Durcan. See Dumas v. State, 439 So.2d 246 (Fla. 3d DCA 1983) (en banc).

      . A jury composed of twelve persons is not a necessary ingredient of trial by jury as a matter of Federal constitutional law. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

      . In the case of a waiver of jury trial as part of a guilty plea, the validity of the waiver must affirmatively appear of record. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. In the case of a waiver of jury trial in favor of a bench trial by a defendant with counsel, the knowing and voluntary nature of the waiver need not affirmatively appear of record. Dumas v. State, 439 So.2d 246 (Fla. 3d DCA 1983) (en banc). See also United States v. Reyes-Meza de Polanco, 422 F.2d 1304 (9th Cir.), cert. denied, 397 U.S. 1081, 90 S.Ct. 1536, 25 L.Ed.2d 817 (1970). In the latter case, it is presumed that the defendant acted knowingly and voluntarily. Dumas v. State, 439 So.2d 246. The presumption, however, merely precludes a defendant from asserting that his waiver of jury trial was invalid because its validity did not appear of record. It does not preclude him from collaterally attacking his conviction on the ground that his waiver was not, in fact, knowing and voluntary. Dumas v. State, 439 So.2d 246. No such presumption arises where the defendant is without counsel before and at the time of the waiver. See Enrique v. State, 408 So.2d 635 (Fla. 3d DCA 1981).

      . In Mt. Sinai Hospital of Greater Miami v. Steiner, 426 So.2d 1154 (Fla. 3d DCA 1983), the parties stipulated that they would proceed with five jurors in the event that one of the jurors became disabled. This constituted a valid waiver of the legal entitlement to a trial by six jurors in the absence of some assertion that the waiver was vitiated by the trial court excusing a juror for a reason not contemplated by the stipulation.


text:
    William WENZ, Appellant, v. The BOARD OF TRUSTEES OF BREVARD COMMUNITY COLLEGE, Appellee.
    No. 82-764.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    Rehearing Denied Oct. 25, 1983.
    C. Anthony Cleveland, General Counsel, FEA/United, Tallahassee, for appellant.
    Stephen M. Brewer, of Matheny & Brewer, P.A., Titusville, for appellee.
   DAUKSCH, Judge.

This is an appeal from a final order entered by the Board of Trustees of Brevard Community College following an administrative hearing. The action of the Board is considered to be “final agency action” and thus we have jurisdiction under Section 120.68(1), Florida Statutes (1981). This is not a case such as Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980) where a further administrative review was available to an employee of a district school system.

The Board found that the allegations and recommendations of the various supervisors of appellant warranted removing appellant from continuing contract status to annual contract status. This means appellant suffers a diminution in his employment security because he can find himself without a job with Brevard Community College at the end of any contract year for no reason if the college decides not to contract with him for another year’s work. Under continuing contract he can be terminated only for good cause. Fla.Admin.Code Rule 6A-14.411.

Rule 6A-14.411(4), Florida Administrative Code, provides that a continuing contract employee can be reduced to annual contract status within the discretion of the Board if good cause is demonstrated by the college administration. At the hearing held before the Board there was conflicting testimony regarding appellant’s qualifications, performance, abilities and behavior as an instructor. Some evidence was clearly favorable and some was clearly unfavorable. It is the function of the Board, just like a judge or jury in a court case, to weigh the evidence, consider the credibility of it, decide disputed issues and reach an opinion upon all evidence properly before it. It is not up to this court to substitute its judgment for that of the Board in deciding disputed issues of fact. § 120.68(10), Fla. Stat. (1981).

The final order of the Board is clear, concise and complete. It sets out those things required by Section 120.59, Florida Statutes (1981), and is sufficiently informative for this court to understand it and use it for the basis of our review.

Our review of the proceedings and the order leads us to the conclusion that there is substantial basis in fact for the finding and determination of the Board and thus we must decline to interfere with its conclusions. Boyette v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977); § 120.68(10), Fla.Stat. (1981). There is no apparent useful purpose for us to set out in detail the testimony and other evidence considered by the Board, but we have determined the findings of fact of the Board are supported by the evidence. We are quite aware that there was contrary evidence and that appellant has some substantial support for his side. But, again, it is the agency, the Board, which reconciles disputed issues of fact, not the appellate court.

The Board complied with all legal requirements in this matter and its order is affirmed.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Jerry Willis HARRIS, a/k/a Rudolph Maximum Harris, Appellee.
    No. 82-2404.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearings Denied Oct. 26, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellee.
   CAMPBELL, Judge.

The state appeals the trial judge’s orders granting appellee’s motion in arrest of judgment directed toward the robbery count of an indictment and a renewed motion for judgment of acquittal directed to a first-degree murder count in the same indictment. This appeal raises difficult questions concerning post-trial motions, the state’s right to appeal certain rulings, and the felony murder rule.

Appellee and two comrades, having decided to commit a robbery, drove to a restaurant called Bohemian Joe’s. Appellee then entered the restaurant while the other two sat outside on some nearby benches. Once inside, appellee robbed the proprietor, Josef Tolar, beating him to death in the process. Appellee was eventually arrested, and a grand jury later returned a two-count indictment against him. Count I charged him with premeditated first-degree murder, and count II charged him with robbery.

Appellee waived a jury trial, and prior to the bench trial, appellee filed a motion to dismiss, arguing inter alia that the robbery count failed to allege a specific intent to permanently deprive the owner of his property. The trial judge denied this motion.

During the trial, appellee’s counsel moved for a judgment of acquittal at the close of the state’s case, arguing that the evidence was insufficient to prove a prima facie case of premeditated murder. Counsel also attacked the robbery count, noting that robbery was a specific intent crime and that the indictment had not charged specific intent. The judge asked if felony murder had been charged, and the assistant state attorney stated that by charging first-degree premeditated murder, the state was entitled to proceed on that theory or under the felony murder theory. At that time, the trial judge expressed some concern about the indictment because count I charged only a murder with no mention of the robbery in that count. However, after further discussion, he denied the motion. The state, while conceding throughout the proceedings that robbery was a specific intent crime, argued that the indictment need not allege the specific intent if it tracked the language of the robbery statute, section 812.13(1), Florida Statutes (1981).

The defense then presented its case, and at the close of all the evidence, appellee’s counsel again moved for acquittal, and the judge again denied the motion. Eventually, the judge found appellee guilty of first-degree felony murder and of robbery. Upon request, he deferred sentencing so that appellee’s counsel could better prepare some post-trial motions.

At the sentencing hearing, appellee’s counsel renewed his motion for judgment of acquittal and moved for a new trial and for an arrest of judgment. In the motion for arrest of judgment, counsel argued that the robbery count of the indictment was fatally defective because it failed to allege specific intent to permanently deprive. He maintained that because of the defective nature of the robbery count in the indictment, ap-pellee could not be found guilty of felony murder. He also argued that the judgment should be arrested because count I of the indictment charged only premeditated murder and not felony murder.

After the state responded, appellee’s counsel presented arguments on the renewed motion for judgment of acquittal. Counsel argued that though the state had proved a prima facie case of robbery, the defense of voluntary intoxication negated this and that in addition the robbery count had not been properly alleged. The trial judge, in finding appellee guilty, at the time specifically noted the evidence relating to the defense of voluntary intoxication but found that other evidence outweighed the evidence that appellee’s intoxication had rendered him unable to form a specific intent. The discussion then turned once more to a consideration of the robbery count of the indictment. The judge again expressed some concern about this count, saying that the state had failed to allege a specific intent to permanently deprive. After reviewing the trial transcript, the judge reaffirmed that he had found appellee not guilty of premeditated murder. He then found that the robbery allegation in count II was improperly made. Then, because of his earlier finding of not guilty on the premeditated murder charge and because he had decided that the robbery count was defective, he believed he could no longer find appellee guilty of first-degree felony murder and so found him guilty of second-degree murder. The assistant state attorney tried to continue the discussion and get the judge to be more specific with his ultimate findings. The assistant state attorney did so primarily because the judge had found during the trial that appellee and his companions went to the restaurant intending to rob. The judge said he “was backing off” that finding because of the defective allegation in count II of the indictment, and when the assistant state attorney tried to press the matter further, the judge became impatient with him and terminated any further discussion. Nevertheless, the assistant state attorney disagreed with the judge’s finding, and with permission he made a proffer, saying that even though the robbery count was dismissed as defective, ap-pellee could still be found guilty of felony murder under count I alone. The judge then sentenced appellee to fifty years in prison, denied the motion for new trial, granted the renewed motion for judgment of acquittal as to the first-degree murder count, granted the motion in arrest of judgment as it pertained to the robbery count and denied it as it pertained to the murder count, and found appellee guilty of second-degree murder.

The judge later entered two separate written orders. One order granted the motion in arrest of judgment because of defective allegations in the robbery count. The order also stated that count I charging first-degree murder was not defective. The other order granted the renewed motion for judgment of acquittal as to the first-degree murder count by stating that there was insufficient evidence to support that count. Though that was the stated reason for granting the motion, the actual reason for granting it becomes apparent upon a close examination of the record, which we now undertake.

Initially, however, we must determine whether we have jurisdiction to review these orders. This jurisdictional point was neither raised nor discussed in the briefs. We did direct that the parties respond to that issue in regard to motions that were filed in this appeal. The judge granted appellee’s motion in arrest of judgment as it related to the robbery count of the indictment, and the state may properly appeal such an order pursuant to Florida Rule of Appellate Procedure 9.140(c). Therefore, the motion in arrest of judgment is properly before us, and we can review it.

We have more difficulty with what has been labeled as an appeal from the order granting the motion for judgment of acquittal. In considering the propriety of reviewing the renewed motion for judgment of acquittal, we note that in State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), following a jury trial, the defendant filed what was then called a “motion of acquittal notwithstanding the verdict,” which the trial court granted. The state appealed, but the appellate court granted a motion to quash that appeal, pointing out that the state cannot appeal a judgment of acquittal. Furthermore, in Watson v. State, 410 So.2d 207 (Fla. 1st DCA 1982), the court noted that once a trial court grants a motion for judgment of acquittal after a jury trial, there can be no retrial even if the court’s ruling is based on an erroneous interpretation of governing legal principles.

Brown also recognizes that a defendant may renew a motion for judgment of acquittal following an adverse jury verdict, and Florida Rule of Criminal Procedure 3.380(c) codifies this practice. How-ever, the plain language of this rule limits it to those situations in which a jury returns a guilty verdict. Construing 3.380(c) to include nonjury trials would read language into the rule which we are unwilling to do. Our reading of rule 3.380(c) is bolstered by comparing it with Florida Rule of Criminal Procedure 3.580. That rule, unlike rule 3.380(c), specifically addresses jury and non-jury trials and allows the court to grant a new trial either after a jury verdict of guilt or a finding of guilt by the court. Thus, appellee could not make a renewed motion for judgment of acquittal in the nonjury trial below, and the trial judge, at least technically, had no jurisdiction to entertain such a motion. That being so, the trial judge may have been vulnerable to a timely writ of prohibition.

Nevertheless, we believe that we can, in fact, review the order granting the acquittal motion on this direct appeal by the state. The written order granting that motion states that it is granted because of insufficient evidence to support a first-degree murder conviction. However, a thorough review of the record clearly indicates that the judge actually granted this motion because the robbery allegation in the indictment did not charge specific intent and because of his erroneous belief that in order to sustain a first-degree felony murder conviction on a count charging premeditated murder, there had to be a separate count charging the underlying felony, in this case, robbery. The trial judge so held even though at the trial he had found the evidence demonstrated a specific intent to permanently deprive which could support a verdict of guilt for robbery or for attempted robbery. Thus, he did not grant the acquittal motion because of insufficient evidence, which is the only permissible ground upon which such a motion can be granted, but because of a supposed insufficiency in the allegations of the indictment. That is the same ground used to support the order arresting judgment. For all practical purposes, the order granting the motion for judgment of acquittal is nothing more than another order arresting judgment, and we so treat it. Therefore, we have jurisdiction to review both orders as rulings on separate motions in arrest of judgment.

Even should we be misinterpreting these orders, which we clearly believe we are not, there are other means of entertaining an appeal by the state in regard to the order granting the “renewed motion for judgment of acquittal.” For example, in State v. Sherrod, 383 So.2d 752 (Fla. 4th DCA 1980), the court treated an order dismissing charges against a defendant as an order dismissing an information, while admitting that the order was in the nature of an order granting a motion for judgment of acquittal. The court then entertained an appeal by the state pursuant to Florida Rule of Appellate Procedure 9.140(c). Here, since the state could properly appeal the order arresting judgment and since the so-called order of acquittal deals with matters undeniably intertwined with those contained in the order arresting judgment, we believe that in this instance full review of all the related issues is proper. Finally, we can review both orders by treating this appeal as a petition for common law certiorari. This is so because the judge departed from the essential requirements of law by entertaining and then granting a motion over which he had no jurisdiction. As we have earlier noted, the trial judge’s actions might also have been subject to a writ of prohibition. Thus, there are several alternative grounds by which we may review this appeal.

We move now to the merits, and we find that the judge erred in granting the motion in arrest of judgment regarding count II of the indictment which charged robbery. In Green v. State, 414 So.2d 1171 (Fla. 5th DCA), petition for review denied, 422 So.2d 842 (Fla.1982), the defendant argued that the information charging him with robbery was defective since it contained no allegation of intent to permanently deprive. The court rejected that argument, saying:

[Wjhile an information which completely neglects to allege an essential element of a crime fails to allege a crime and is fundamentally deficient and can be attacked at any time, an information which imperfectly alleges an element of a crime but does not wholly fail to allege that element is not fundamentally deficient and must be attacked by a motion to dismiss or the defect is deemed harmless.

414 So.2d at 1173. See Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922).

The indictment in this case also alleges that appellee did “steal,” and this also alleges, though perhaps imperfectly, all the elements of robbery. Of course, in accordance with Bell v. State, 394 So.2d 979 (Fla.1981), it must be noted that robbery is still a specific intent crime, and the state still must prove specific intent, which burden the state in this case acknowledged throughout the proceedings. However, so long as the indictment tracks the statute, an imperfect allegation of an essential element of the crime will not, without more, vitiate the indictment. This holding does not infringe upon an accused’s constitutional right to be informed of the charges against him, Dilworth v. State, 397 So.2d 292 (Fla.1981), nor does it violate Florida Rule of Criminal Procedure 3.140(o). Because the trial judge erred in granting in part the motion in arrest of judgment, he also erred in granting the motion for judgment of acquittal, which we treat as a motion in arrest of judgment, on the count charging first-degree murder. This is so because the record shows that the trial judge grounded this ruling on a misconception that there must be a separate count charging robbery to support a conviction for felony first-degree murder under a count charging premeditated murder and because he believed the robbery count was improperly alleged.

The trial judge correctly stated in his order arresting judgment on the robbery count that the premeditated murder count was not defective. Not only was the allegation properly made, it is also clear that the state can charge premeditated murder and then convict a defendant of first-degree felony murder. State v. Pinder, 375 So.2d 836 (Fla.1978); Knight v. State, 338 So.2d 201 (Fla.1976); Barton v. State, 193 So.2d 618 (Fla. 2d DCA 1967). That is precisely what happened at appellee’s trial. The trial judge found that appellee and his comrades went to the restaurant with the intent to rob and that appellee killed the victim in the course of that robbery. Therefore, the judge was correct in originally finding appellee guilty of first-degree felony murder.

However, though the robbery count was sufficient to charge appellee and though there was sufficient evidence to convict him of the charge, we conclude that our supreme court’s recent decision in Bell v. State, 437 So.2d 1057 (Fla.1983), mandates that appellee cannot be either convicted or sentenced for the robbery and also for felony first-degree murder for which the robbery is the underlying felony.

Accordingly, we reverse the trial judge’s orders granting appellee’s post-trial motions. We reinstate the judgment of guilt for first-degree felony murder. We strike the judgment of guilt as to the charge of robbery as being in violation of Bell v. State, 437 So.2d 1057 (Fla.1983), and we remand for the imposition of an appropriate sentence on the conviction for first-degree felony murder.

REVERSED and REMANDED.

OTT, C.J., and RYDER, J., concur.

      . The Grand Jurors of the County of Hillsborough, State of Florida, charge that JERRY WILLIS HARRIS AKA RUDOLPH MAXIUM (sic) HARRIS, on the 4th day of July, 1981, in the County and State aforesaid, from a premeditated design to effect the death of JOSEF TOLAR by beating him about the head, a further description of which is to the Grand Jurors unknown, contrary to the form of the statute in such cases made and provided, to-wit: Florida Statute 782.04, and
      SECOND COUNT
      The Grand Jurors of the County of Hillsborough, State of Florida, charge that JERRY WILLIS HARRIS AKA RUDOLPH MAXIUM (sic) HARRIS, on the 4th day of July, 1981, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, rob, steal and take away from the person or custody of JOSEF TOLAR certain property, to-wit: cash, a watch and ring, a further description of which is to the Grand Jurors unknown, the said JERRY WILLIS HARRIS AKA RUDOLPH MAXIUM (sic) HARRIS not being the true owner of the said property, no firearm, deadly weapon, or other weapon being carried in the course of the robbery, contrary to the form of the statute in such cases made and provided, to-wit: Florida Statute 812.13(2)(c).

      . Rule 3.380. Motion for Judgment of Acquittal

      ie) If the jury returns a verdict of guilty or is discharged without having returned a verdict, the defendant’s motion may be made or renewed within ten days after the reception of a verdict, and the jury is discharged or such further time as the court may allow.

      . Rule 3.580. Court May Grant New Trial
      When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion, may grant a new trial or arrest judgment.

      . Rule 3.140. Indictments; Informations

      (o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.


author: PER CURIAM.

text:
    Wayne F. WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1510.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Nov. 9, 1983.
    Wayne F. Watson, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction of burglary because it appears without contradiction that appellant was invited to enter and remain in the structure in question by the complaining witness. See Section 810.02(1), Florida Statutes (1979) and State v. Hicks, 421 So.2d 510 (Fla.1982). The remaining judgments and sentences' are affirmed.

Affirmed in part and reversed in part.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.