Montero v. State , 780 So. 2d 917 ( 2000 )

780 So. 2d 917 (2000)

Jeremy E. MONTERO, Appellant,
v.
STATE of Florida, Appellee.

No. 2D98-751.

District Court of Appeal of Florida, Second District.

January 26, 2000.

Jeffrey Sullivan, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

PATTERSON, Chief Judge.

Jeremy Montero appeals from his judgment and sentence for battery on a law enforcement officer and from the order revoking his community control. He argues, and the State concedes, that the trial court failed to question Montero to determine whether he wished to waive his right to a jury trial. Therefore, because the record fails to show that Montero validly waived his right to a jury trial, we reverse Montero's conviction for battery on a law enforcement officer. See Tucker v. State, 559 So. 2d 218 (Fla.1990) (holding that a defendant's waiver of the right to a jury trial must appear in the record). However, because Montero was not entitled to a jury trial for the violation of community control, the trial court's findings at the hearing are valid and the revocation order must stand.

Affirmed in part and reversed in part.

NORTHCUTT and STRINGER, JJ., Concur.