STATE OF FLORIDA, PETITIONER,
v.
RAYMOND JOSEPH, RESPONDENT
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A twelve-person jury is required in first-degree murder trials unless waived by the defense, even if the death penalty is not sought.
The Third District Court of Appeal certified a question regarding the requirement of a twelve-person jury in a first-degree murder case where the pros…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHAW, Justice.
We have for review Joseph v. State, 550 So. 2d 1134 (Fla. 3d DCA 1989), in which the district court certified the following question as one of great public importance:
IS A TWELVE-PERSON JURY REQUIRED IN A FIRST-DEGREE MURDER CASE IN WHICH THE PROSECUTION WAIVES THE DEATH PENALTY?
Id. at 1135. 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 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. A record showing of the defendant’s personal waiver is unnecessary — counsel may waive the right for the defense.
It is thus clear from Griffith that a defendant in a first-degree murder trial is entitled to a twelve-person jury unless the right is waived by the defendant or his counsel. The district court found in this instance that there was no waiver and the state has failed to direct our attention to a record waiver. We are unwilling to imply waiver from a silent record. We accordingly approve the district court’s decision.
It is so ordered.
EHRLICH, C.J., and McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur. OVERTON, J., dissents.
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Smith v. State, 857 So. 2d 268 (Fla. 5th DCA 2003)…, concur. . Of course, it may well be that there was an agreement that took place either off-the-record or at a hearing that was not transcribed. . In a companion opinion released on the same date as Griffith, the supreme court in State v. Joseph, 561 So. 2d 534 (Fla.1990), also held that while a twelve-person jury could be waived by the defendant or his counsel, the waiver must appear on the record. However, Joseph was a direct appeal, not a post-conviction proceeding, and unlike the instant case, the defe…
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Cabberiza v. Moore, 217 F.3d 1329 (11th Cir. 2000)…er, a "capital felony,” in violation of Fla. Stat. Ann. § 782.04 (West 2000). As a result, they were entitled to twelve jurors, see Fla. Stat. Ann. § 913.10 (West 1996), even though they were not facing the death penalty. See State v. Joseph, 561 So. 2d 534, 534 (Fla.1990); State v. Griffith, 561 So. 2d 528, 529 (Fla.1990). .The prosecutor evidently overlooked the fact that, at the initial pre-trial conference, he had informed the court and defense counsel that the State would not be seeking the death…
Authorities Cited
- State v. Griffith, 561 So. 2d 528 (Fla. 1990)
- Sylvia v. State, 550 So. 2d 1134 (Fla. 3d DCA 1989)
- Joseph v. State, 550 So. 2d 1134 (Fla. 3d DCA 1989)