STATE
v.
WONG
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The State of Florida petitioned for a writ of certiorari to quash a trial court order requiring defendant Ivan Wong to proceed to trial before a six-person jury on charges including capital first-degree murder. The Florida Supreme Court held that because first-degree murder is a capital offense under Florida law, a defendant is entitled to a twelve-person jury as a matter of right, and the State's waiver of the death penalty does not eliminate this entitlement.
A defendant charged with capital first-degree murder is entitled to trial by a twelve-person jury as a matter of law. The State's waiver of the death penalty does not diminish this right, and the defendant's right to a twelve-person jury can only be waived by the defendant himself, not unilaterally by the prosecution or trial court.
[1] A defendant indicted for a capital offense is entitled to trial by a twelve-person jury as a matter of law, and this right cannot be eliminated by the prosecutor's unilat…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[T]he prosecutor cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital and unilaterally determine whether a defendant is entitled to trial by a twelve-person jury.”
State v. Griffith, holding that prosecutorial waiver of death penalty does not strip defendant of twelve-person jury right
Ivan Wong was indicted by grand jury on several charges including first-degree murder, a capital offense. The State waived the death penalty in the ca…
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HENDON, J.
The State of Florida petitions this Court for a writ of mandamus or prohibition to compel the trial court to empanel a twelve-person jury. We treat the State’s petition as a petition for writ of certiorari seeking to quash the trial court’s pretrial order requiring the defendant, Ivan Wong, to proceed to trial before a six-person jury, not a twelve-person jury, for several charges, including the capital offense of first degree murder. See State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988) (upholding the State’s right to certiorari review of nonappealable pretrial orders).
As the State has established that the trial court’s order departs from the essential requirements of law, resulting in a material injury for which there is no adequate remedy on appeal, we grant the petition for writ of certiorari and quash the trial court’s order. The defendant was indicted by a grand jury on several charges, which included first degree murder, a capital offense. Although the State has waived the death penalty, the defendant has not waived his right to a twelve-person jury. In State v. Griffith, 561 So. 2d 528, 530 (Fla. 1990), the Florida Supreme Court held that “[t]he prosecutor cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital and unilaterally determine whether a defendant is entitled to trial by a twelve-person jury.” Further, as explained by this Court in Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA 1988):
We further note that the trial court’s pretrial decision not to impose a death penalty did not transform first-degree murder into a noncapital crime. Murder in the first degree is a capital offense. Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987). Section 913.10, Florida Statutes (1985), and Florida Rule of Criminal Procedure 3.270 provide for a twelve-person jury to try all capital cases. The law is clear, however, that a person can be convicted of a capital crime in Florida by a jury of fewer than twelve where there is a valid defense waiver of the right to a twelve-member jury. State v. Garcia, 229 So. 2d 236 (Fla. 1969); Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983); Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980). In the instant case, there was no waiver. The trial court erred in forcing Alfonso and Codecido to proceed to trial with fewer jurors than they were entitled to by law.
Alfonso, 528 So. 2d at 384-85 (footnotes omitted); see also Jimenez v. State, 167 So. 3d 497 (Fla. 3d DCA 2015). Thus, the trial court’s order requiring the defendant to proceed to trial before a six-person jury departs from the essential requirements of law, and the harm to the State cannot be remedied on appeal.
Accordingly, we grant the petition for writ of certiorari and quash the trial court’s order. Petition granted; order quashed.
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Authorities Cited
- State v. Pettis, 520 So. 2d 250 (Fla. 1988)
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)
- State v. Griffith, 561 So. 2d 528 (Fla. 1990)
- Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)
- Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)
- Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980)
- Jose Angel "Pepe" Alfonso and Javier Codecido v. State, 528 So. 2d 383 (Fla. 3d DCA 1988)
- Jimenez v. State, 167 So. 3d 497 (Fla. 3d DCA 2015)