Opinion
No. 73999.
March 29, 1990.
Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for petitioner.
Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
In Jones v. State, 548 So.2d 244, 244 n. 2 (Fla. 3d DCA 1989), the district court certified the following question as one of great public importance:
Whether a twelve-person jury is required in a first degree murder case in which the prosecution waives the death penalty?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In State v. Griffith, 561 So.2d 528 (Fla. 1990), we answered the certified question with a qualified affirmative and held that, regardless of whether the state seeks the death penalty, a twelve-person jury is required in first-degree murder trials unless waived by the defense. In this case defense counsel's agreement with the state to trial by a six-person jury in exchange for the state's waiver of the death penalty constituted a valid waiver of Jones's statutory right to trial by a twelve-person jury. Griffith. We therefore quash the district court's decision.
The following exchange took place on the record.
MR. SOHN: [Defense Counsel]: It's my understanding the State is waiving the death penalty. We have agreed to a jury of six.
MR. NORRIS: [Prosecutor]: That's correct, Judge.
It is so ordered.
EHRLICH, C.J., and SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
OVERTON, J., concurs in result only.