CHERRY B. MURROW, APPELLANT,
v.
OSCEOLA COUNTY, FLORIDA, APPELLEE
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A party waives their right to a jury trial by affirmatively agreeing to and participating in a bench trial.
Appellant sought to vacate a forfeiture judgment, arguing the trial court failed to obtain a written jury trial waiver. She participated in a bench tr…
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PER CURIAM.
Cherry B. Murrow appeals the denial of her motion, pursuant to Rule 1.540, Florida Rules of Civil Procedure, to have a judgment of forfeiture vacated based on the fact that during her bench trial, the trial court failed to obtain from her a written waiver of her right to a jury trial. We affirm.
Rule 1.430(d), Florida Rules of Civil Procedure, states that “a party who fails to serve a demand as required by this rule waives trial by jury.” Section 932.704(3), Florida Statutes (1995) provides:
Any trial on the ultimate issue of forfeiture shall be decided by a jury, unless such right is waived by the claimant through a written waiver or on the record before the court conducting the forfeiture proceeding.
Murrow, by agreeing to and participating in, a bench trial, affirmatively waived her right to a jury trial.
We note additionally that even assuming error was made in failing to inform Murrow of her right to a jury trial, her proper remedy was by appeal, not by way of a 1.540 motion. Curbelo v. Ullman, 571 So. 2d 443, 445 (Fla.1990) (judicial error such as a “mistaken view of the law” is not one of the circumstances contemplated by the rule.)
AFFIRMED.
PETERSON, C.J., W. SHARP, and ANTOON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Del-Rena, Inc. v. KFM, Inc., 789 So. 2d 397 (Fla. 4th DCA 2001)…unterclaims as issues to be decided at non-jury trial); Martin v. Ullman, 555 So. 2d 1232, 1233 (Fla. 3d DCA 1989)(a party who participates in a non-jury trial without raising an objection waives the right to a jury trial); Murrow v. Osceola County, 679 So. 2d 883, 884 (Fla. 5th DCA 1996)(by agreeing to and participating in a bench trial, appellant affirmatively waived her right to a jury trial). During the nine-month period between the filing of the motion to strike and the hearing thereon, appellants did n…
Authorities Cited
- Arnaldo Curbelo, M.D. v. Ullman, 571 So. 2d 443 (Fla. 1990)