GABRIEL RODRIGUEZ-ACOSTA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant's constitutional right to a twelve-member jury cannot be waived by counsel without the defendant's knowing and voluntary consent or ratification, and such a waiver constitutes fundamental error.
Appellant was convicted of first-degree murder and possession of a firearm by a six-member jury. Defense counsel waived the right to a twelve-member j…
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PER CURIAM.
A six-member jury found the appellant guilty of first degree murder and possession of a firearm during the commission of a felony. Appellant contends that, because his right to a twelve-member jury was waived without his valid or voluntary consent or ratification, it was fundamental error. We agree.
A person can be convicted of a capital crime by a jury of fewer than twelve, but only where there is a valid defense waiver of the right to a twelve-member jury. State v. Garcia, 229 So. 2d 236 (Fla.1969). In the instant case, the record is uncontrovertably clear that no valid waiver was made. Sessums v. State, 404 So. 2d 1074 (Fla. 3d DCA 1981). The public defender agreed to waive Gabriel Rodriguez-Acosta’s constitutional right to a twelve-person jury while he was not present, in the courtroom. At no time did the trial court question appellant to ascertain whether he knowingly and voluntarily waived his right or ratified his counsel’s waiver. Nor does the record contain a signed waiver by Rodriguez-Acosta. Thus, defense counsel’s waiver of the appellant’s right to a twelve-member jury constitutes fundamental error which requires reversal of his conviction. Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983). The trial by a sixrmember panel violated appellant’s constitutional right to trial by twelve persons and therefore is a denial of his due process rights. Cotton v. State, 85 Fla. 197, 95 So. 668 (1923). Gabriel Rodriguez-Acosta’s convictions are therefore reversed and the cause is remanded to the trial court for a new trial.1
Reversed and remanded with directions.
. As indicated in Griffith v. State, 548 So. 2d 244, n. 2 (Fla 3d DCA 1989), the order setting this case for en banc hearing is discharged and the following question is certified to the supreme court 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?
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Jones v. State, 548 So. 2d 244 (Fla. 3d DCA 1989)…2d 1105 (Fla.1985); Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983), pet. for review denied, 472 So. 2d 1181 (Fla.1985), we set aside Jones’s first degree murder conviction, and order a new trial on the ground, as held in Rodriguez-Acosta v. State, 548 So. 2d 248 (Fla. 3d DCA 1989) and Griffith v. State, 548 So. 2d 244 (Fla. 3d DCA 1989), that his purported waiver of a twelve-person jury effected only by his counsel after the state waived the death penalty,1 was legally insufficient. Reversed for a new tria…
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Griffith v. State, 548 So. 2d 244 (Fla. 3d DCA 1989)…” was accepted on the record only by the defendant’s attorney,1 and, based upon and as an aspect of that agreement, a six, rather than a twelve-person jury, was selected and considered the cause. We hold, as we do today in Rodriguez-Acosta v. State, 548 So. 2d 248 (Fla. 3d DCA 1989) and Jones v. State, 548 So. 2d 244 (Fla. 3d DCA 1989), that the defen [*246] dant’s admitted failure personally to forego the twelve-person jury required by section 913.10, Florida Statutes (1985) and Florida Rule of Criminal Proc…
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State v. Rodriguez-Acosta, 561 So. 2d 531 (Fla. 1990)…McDONALD, Justice. We review Rodriguez-Acosta v. State, 548 So. 2d 248, 249 n. 1 (Fla. 3d DCA 1989), [*532] in which 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 pe…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)
- Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)
- Cotton v. State, 85 Fla. 197 (Fla. 1923)
- Sessums v. State, 404 So. 2d 1074 (Fla. 3d DCA 1981)
- Jones v. State, 548 So. 2d 244 (Fla. 3d DCA 1989)
- Griffith v. State, 548 So. 2d 244 (Fla. 3d DCA 1989)