Weiner v. State , 43 Fla. Supp. 2d 61 ( 1990 )

OPINION OF THE COURT

PATTI ENGLANDER HENNING, Circuit Judge.

THIS CAUSE comes before the Court upon the appeal of a conviction entered against Appellant, Hans Weiner, who was arrested on February 29, 1988 and charged by Information with Making Obscene or Harassing Telephone Calls in violation of Fla. Stat. 365.16(l)(b)(c) (d) and Trespass In A Structure or Conveyance in violation of Fla. Stat. 810.08.

At his arraignment, the Appellant pled not guilty and requested a jury trial. On April 14, 1989, a status conference was held at which time the Court indicated that the case was to be held without a jury as there would be no incarceration.

A non-jury trial was held on April 24, 1989, and Defendant was convicted on both of the aforementioned counts. Since Defendant never waived having a jury trial, he has appealed to this Court alleging an abrogation of his Constitutional right to a jury trial.

In determining whether a “given crime is serious enough to warrant a jury trial,” the Florida Supreme Court has held that the most obvious criterion in determining seriousness of the crime is the severity of the maximum authorized penalty. Whirley v State, 450 So.2d 836 (Fla. 1984).

Defendant was charged with violating Florida Statute 810.08 entitled “Trespass in Structure or Conveyance,” Since the Information does not charge the Defendant with trespass of an occupied structure (Fla. Stat. 810.08(b)), which is a misdemeanor of the first degree, punishable by a term of imprisonment not exceeding one year, the trial court judge reasonably interpreted the Information as describing a second degree misdemeanor, punishable by a term of imprisonment not exceeding 60 days. Florida Statute 918.057 allows the Court to proceed non-jury in criminal prosecutions “if at the time the case is set for trial the court announced that in the event of conviction of the crime as charged or of any lesser included offense a sentence of imprisonment will not be imposed and the defendant will not be adjudicated guilty.”

In fact the Defendant was not sentenced for a first degree misdemeanor, the adjudication was withheld and he was placed on probation for six months.

Accordingly, it is hereby,

ORDERED AND ADJUDGED that the decision of the Trial Court is AFFIRMED.

DONE AND ORDERED in Chambers, at the Broward County Courthouse, 201 Southeast Sixth Street , Fort Lauderdale, Broward County, Florida 33301, this 1st day of August, 1990.