Donald Wayne Farino v The State Of Oklahoma

M-2014-235

Filed: Apr. 3, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Donald Wayne Farino appealed his conviction for Obtaining Cash By False Pretenses and Petit Larceny. Conviction and sentence were reversed, and he gets a new trial. A. Johnson dissented.

Decision

The Judgments and Sentences of the District Court of Bryan County in Case Nos. CM-2012-943 and CM-2012-944 are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was there a valid waiver of Appellant's right to a jury trial?
• did the State and Appellant agree that no record exists of a waiver of the right to a jury trial?
• must the Appellant's convictions be reversed and remanded for a new trial due to the lack of a valid jury trial waiver?

Findings

• The court erred by not having a valid waiver of Appellant's right to a jury trial.
• The Judgments and Sentences are reversed and remanded for a new trial.

M-2014-235

Apr. 3, 2015

Donald Wayne Farino

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE PRESIDING JUDGE:

The Appellant, Donald Wayne Farino, appeals to this Court from his misdemeanor Judgments and Sentences entered after a combined non-jury trial before the Honorable Mark R. Campbell, District Judge, in Case Nos. CM-2012-943 and CM-2012-944 in the District Court of Bryan County. In Case No. CM-2012-943, Appellant was convicted of Obtaining Cash By False Pretenses, and was sentenced to six months in the Bryan County Jail. In Case No. CM-2012-944, Appellant was convicted of Petit Larceny, and was sentenced to six months in the Bryan County Jail. The sentences were ordered to run concurrently.

In Proposition I, Appellant claims that, because he never waived his right to a jury trial in these cases, this Court must reverse his convictions. The State concedes there is no record of a valid waiver of Appellant’s right to a jury trial. Therefore, Appellant’s Judgments and Sentences must be reversed and remanded for a new trial based upon Proposition I, and we need not address his other propositions.

ANALYSIS

The right of trial by jury shall be and remain inviolate, except in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Okla. Const. art. II, § 19. The crime of Obtaining Cash By False Pretenses is punishable by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment. 21 O.S.2011, § 1541.1. The crime of Petit Larceny shall be punishable by a fine of not less than Ten Dollars ($10.00) or more than Five Hundred Dollars ($500.00), or imprisonment in the county jail not to exceed six (6) months, or by both such fine and imprisonment. 21 O.S.2011, § 1706. Appellant was thus entitled to a jury trial in both Case Nos. CM-2012-943 and CM-2012-944. An accused may waive his constitutional right to a jury trial, but only if there is a clear showing that such waiver was competently, knowingly and intelligently given. Valega U. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119. A valid waiver of a jury trial requires the consent of the accused, the prosecutor and the trial judge. Id. A record showing an intelligent, competent and knowing waiver of a jury trial is mandatory and anything less is not a waiver. Id. Both the State and Appellant agree, and this Court finds, that neither the non-jury trial transcript nor the original record contains any waiver of the right to a jury trial.

DECISION

The Judgments and Sentences of the District Court of Bryan County in Case Nos. CM-2012-943 and CM-2012-944 are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.

A. JOHNSON, J.: CONCUR RA/F

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Footnotes:

1. Okla. Const. art. II, § 19.
2. 21 O.S.2011, § 1541.1.
3. 21 O.S.2011, § 1706.
4. Valega U. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015).

Oklahoma Statutes citations:

• Okla. Const. art. II § 19 - Right to trial by jury
• Okla. Stat. tit. 21 § 1541.1 (2011) - Obtaining Cash By False Pretenses
• Okla. Stat. tit. 21 § 1706 (2011) - Petit Larceny

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119