Dale JOHNSON, Petitioner, v. STATE of Florida, Respondent, 994 So. 2d 960

LEWIS, J. We have for review Johnson v. State, 944 So.2d 474 (Fla. 4th DCA 2006), which expressly and directly conflicts with the decisions in State v. Upton, 658 So.2d 86 (Fla.1995), and Tucker v. State, 559 So.2d 218 (Fla.1990). We have jurisdiction pursuant to

article V,

section 3(b)(3) of the Florida Constitution. We approve the ultimate result of the decision under review but disapprove the reasoning to the extent it is inconsistent with this opinion. FACTUAL AND PROCEDURAL HISTORY The facts of the underlying action were summarized in the opinion of the Fourth District Court of Appeal as follows: The State charged Johnson with, inter alia, felony [driving under the influence (“DUI”) ]. The information alleged that Johnson’s faculties were impaired and that he had three prior DUI convictions.

The trial court conducted a jury trial on the single, present incident of DUI at issue [this incident occurred on August 4, 2004] without allowing the jury to learn of the alleged prior misdemeanor DUI offenses. After the jury returned a guilty verdict as to the present incident, it was excused and, based on the parties’ previous stipulation, the trial court proceeded without a jury to determine whether Johnson had been convicted of DUI on three or more prior occasions.

The trial court ascertained that Johnson had three previous DUI convictions from his Florida Department of Highway Safety and Motor Vehicle Division of Driver’s Licenses Transcript of Driver Record [“driving record”]. Based on Johnson’s prior convictions and the verdict of the jury, the court adjudicated Johnson guilty of felony DUI. Johnson, 944 So.2d at 476. On appeal, the Fourth District held, in part, that Johnson’s right to a jury trial was not violated when the trial judge determined that Johnson had three prior DUI convictions. See id. at 475.

The Fourth District reasoned that notwithstanding the trial judge’s failure to “conduct a colloquy with Johnson concerning waiver,” Johnson’s counsel stipulated to a second-phase bench trial, which constituted a valid oral waiver of Johnson’s right to a jury trial during the second phase of the felony DUI proceeding. Id. at 476-77. This review followed. ANALYSIS Applicable Law In Florida, felony DUI is defined as follows: 3. Any person who is convicted of a fourth or subsequent violation of [the DUI statute], regardless of when any prior conviction for a violation of this

section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for such fourth or subsequent violation may be not less than $1,000. § 316.193(2)(b)(3), Fla. Stat. (2004). Additionally, criminal defendants have a right to a jury trial for serious crimes — i.e., those that “have a maximum penalty of more than six months’ imprisonment or more than a $500 fine” — but not petty offenses — i.e., those that “have a maximum penalty of six months’ or less imprisonment or a $500 or less fine.” Reed v.

State, 470 So.2d 1382, 1383 (Fla.1985); see also Whirley v. State, 450 So.2d 836, 839 (Fla.1984) (“[T]he federal petty crime exception to the jury trial requirement in criminal prosecutions is also an exception under our own constitutional provision.”) (citing Aaron v. State, 345 So.2d 641 (Fla.1977); Aaron v. State, 284 So.2d 673 (Fla.1973)). Thus, Johnson was entitled to a jury trial in the instant case because felony DUI is punishable by a fíne of “not less than $1,000.” § 316.193(2)(b)(3), Fla. Stat. (2004).

This is consistent with the current bifurcated trial process that this Court has established for felony DUI. In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), this Court first established the bifurcated process: We conclude that if a defendant charged with felony DUI elects to be tried by jury, the court shall conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior DUI offenses.

If the jury returns a guilty verdict as to that single incident of DUI, the trial court shall conduct a separate proceeding without a jury to determine, in accord with general principles of law, whether the defendant had been convicted of DUI on three or more prior occasions. Id. at 1266 (footnote omitted) (emphasis supplied). However, in State v.

Harbaugh, 754 So.2d 691 (Fla.2000), this Court modified the requirements for the second phase of a felony DUI proceeding: Examining the Rodriguez bifurcated trial process in felony DUI prosecutions in light of Gaudin,[] we hold that in this bifurcated process the jury, not the judge, must determine the verdict from the evidence presented in the second phase.... [T]he jury, unless waived by the defendant, must decide the issue regarding the three prior convictions. Id. at 694 (citing Gaudin, 515 U.S. at 523-24, 115 S.Ct. 2310 (Rehnquist, C.J., concurring)).

The requirement of a jury trial (absent a valid waiver) during the second phase of a felony DUI proceeding is consistent with the principle that “the requirement of three prior misdemeanor DUI offenses is considered an element of felony DUI,” rather than a type of enhancement that results in felony DUI. State v. Finelli, 780 So.2d 31, 33 (Fla.2001) (emphasis supplied) (citing Harbaugh, 754 So.2d 691; Rodriguez, 575 So.2d 1262).

This Court has required that either a written waiver, which is signed by the defendant (not merely defense counsel), pursuant to Florida Rule of Criminal Procedure 3.260, see Upton, 658 So.2d at 87, or an oral waiver, which is preceded by a proper colloquy during which the trial judge focuses on the value of a jury trial and provides a full explanation of the consequences of a waiver, see Tucker, 559 So.2d at 220, is necessary to constitute a sufficient waiver. Further, a defendant’s silence does not establish a valid waiver of the right to a jury trial.

See Upton, 658 So.2d at 88 (“The mere fact that Upton remained silent during the trial and did not object to the judge sitting as the fact-finder was insufficient to demonstrate that he agreed with the waiver.”). Waiver of Appellate Review As a preliminary matter, the State contends that Johnson waived appellate review of this claim when he failed to request a jury trial or object to the bench trial during the second phase of the felony DUI proceeding. We disagree. In Har-baugh, this Court clearly established that a jury trial during the second phase of a felony DUI proceeding is the default rule.

See 754 So.2d at 694. The trial judge must ensure that the defendant has validly waived the right to a jury trial before a bench trial may occur. Further, because a defendant’s silence clearly does not constitute a valid waiver, see Upton, 658 So.2d at 88, it logically follows that defendants are not required to break their silence (through either a request for a jury trial or an objection to the bench trial) to preserve appellate review of this claim. Here, just as Johnson’s silence was insufficient to waive his right to a jury trial, his silence was insufficient to waive appellate review of this claim.

The record establishes that Johnson’s silence was only broken once through the following exchange with the trial judge: THE COURT: ... [The driving record] indicates you have previously been convicted three times. If that is inaccurate, now is the time for someone to tell me. THE DEFENDANT: No,sir.[] Contrary to the State’s assertion, this failure by Johnson to challenge his driving record does not constitute a waiver of appellate review on this claim. For all these reasons, we address the merits of the instant case.

Error by the Trial Judge Johnson asserts that the trial judge erred when he conducted a bench trial during the second phase of the felony DUI proceeding because he (Johnson) did not validly waive his right to a jury trial. We agree. For the same reason that Johnson did not waive appellate review, he did not waive his right to a jury trial during the second phase of the felony DUI proceeding. Johnson’s general silence, which was broken only by the limited “No, sir” statement in response to a statement by the court, did not constitute a valid waiver.

A proper oral waiver could not occur without a proper colloquy with Johnson. However, this record is devoid of any colloquy. Without a proper colloquy, a defendant’s stipulation does not function as a valid waiver of the right to a jury trial; such a waiver must be made knowingly and intelligently. See Guzman v. State, 868 So.2d 498, 511 (Fla.2003) (“A defendant’s waiver of a jury trial is valid only if the waiver is knowing, intelligent, and voluntary.” (citing Tucker, 559 So.2d at 219)).

Here, the missing factors establish that Johnson did not make a knowing and intelligent waiver of his right to a jury trial as required by Florida law during the second phase of the felony DUI proceeding. Therefore, we conclude that the trial judge erred when he conducted a bench trial during the second phase. Harmless Error Analysis Finally, the State contends that even if the trial judge erred in this manner, the error was harmless. We agree. As a general rule, this type of error is subject to a harmless-error analysis.

See Harbaugh, 754 So.2d at 694 (“[A] Gaudin error is subject to harmless error review.... ‘[AJnswering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.’ ”) (quoting Neder v.

United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)); see also Neder, 527 U.S. at 19, 119 S.Ct. 1827 (discussing that in a case where the jury-trial guarantee has been violated, but the “defendant did not, and apparently could not, bring forth facts contesting the omitted element,” such a violation is subject to a harmless-error analysis (emphasis supplied)). In State v.

DiGuilio, 491 So.2d 1129 (Fla.1986), this Court outlined the harmless-error test that is applicable here: The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Id. at 1135 (emphasis supplied). Here, the State has proven beyond a reasonable doubt that there is no reasonable probability that the error contributed to Johnson’s conviction.

Specifically, even if a jury trial had occurred during this second phase of the felony DUI proceeding, Johnson would have still most likely been convicted of felony DUI. The reason is simple. The jury would have likely found the existence of the three previous DUI convictions due to Johnson’s driving record. This documentation clearly indicated that he had the requisite three previous convictions for DUI in 1986, 1988, and 1999. Contrary to Johnson’s assertion, this driving record was sufficient to establish this element of the felony DUI offense:

(12) If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence. However, such evidence may be contradicted or rebutted by other evidence. This presumption may be considered along with any other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence. § 316.193(12), Fla. Stat. (2004) (emphasis supplied).

Johnson has neither contradicted nor rebutted this evidence. Instead, he has affirmatively stated that the driving record is accurate. Thus, Johnson did not (and seemingly could not) produce any facts to contest the accuracy of the driving record. Accordingly, we conclude that the error in the instant case is not reversible but is, instead, harmless. CONCLUSION For the foregoing reasons, we approve the ultimate result of the decision under review but disapprove the reasoning to the extent it is inconsistent with this opinion. In so doing, we approve the decisions in Upton and Tucker. It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, BELL, JJ., and CANTERO, Senior Justice, concur. ANSTEAD, J., dissents with an opinion. . It should be noted that Johnson has referred to

section 316.193, Florida Statutes (2003), in his brief, which is not the applicable version of the felony DUI statute for purposes of this review. Johnson committed the alleged offense on August 4, 2004. Thus, the version of

section 316.193 that is applicable here was effective from July 1, 2004, to September 30, 2005. See ch. 2004-379, § 1 at 2886, Laws of Fla. . In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the High Court held that the trial court erred when it did not allow the jury to decide materiality, which was an element of the charged offense (i.e., whether the defendant made material false statements). See id. at 507, 115 S.Ct. 2310. .

It should be noted that contrary to the State’s assertion, this is the only instance in the record where Johnson addressed the accuracy of his driving record. The State asserts that Johnson made a similar affirmation before trial, but instead, it was Johnson’s counsel who stated before trial that the driving record was "reflected sufficiently.” This statement by defense counsel was made in the following context: [STATE]: ... The State will be introducing the driver's license record. I have redacted it.

If Your Honor wants to look at it, I believe there is no objection by Defense. [DEFENSE COUNSEL]: It is reflected sufficiently. (Emphasis supplied.) . As previously discussed, Johnson has relied on an inapplicable version of the felony DUI statute. This is a crucial point because the inapplicable version does not contain subsection (12), which is quoted above. Consistent with this omission, Johnson argues that his driving record by itself is insufficient to establish the three previous DUI convictions.

Subsection (12), which states the exact opposite, was added to the 2004 version of this statute, and its language is critical to our conclusion that the error here was harmless. . Johnson asserts that we should not consider this statement in conducting a harmless-error analysis due to the following: (1) if the second phase of this felony DUI proceeding had been a jury trial, he would have never been questioned by either the trial judge or the State; and (2) this questioning violated his right to remain silent. We conclude that this assertion is without merit for multiple reasons.

First, Johnson provides no authority to support his proposition that we may not consider all evidence within the record when we conduct a harmless-error analysis. Second, we consider Johnson’s statement only to conclude that he likely would not have been able to present any facts to contest the accuracy of the driving record had a jury trial occurred during the second phase of this felony DUI proceeding. Thus, it is irrelevant that this alleged questioning of Johnson would not have occurred during a juiy trial or that it possibly violated his right to remain silent.

Johnson's statement provides valuable insight on that which likely would have occurred if a jury had been empanelled for this second phase.