State v. Poole , 561 So. 2d 535 ( 1990 )

McDONALD, Justice.

We review Poole v. State, 550 So.2d 1144 (Fla. 3d DCA 1989), in which the district court certified as a question of great public importance the same question it certified in Griffith v. State, 548 So.2d 244, 246 n. 2 (Fla. 3d DCA 1989), i.e.:

Whether a twelve-person jury is required in a first degree murder case in which the prosecution waives the death penalty?

Poole, 550 So.2d at 1145. 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. This case was tried before a six-person jury over defense counsel’s objection, and, thus, there was no valid and effective waiver of Poole’s statutory right to a twelve-person jury.^* Griffith. We therefore approve the district court’s decision.

It is so ordered.

EHRLICH, C.J., and SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. OVERTON, J., dissents with an opinion.

* The following exchange took place on the record.

MR. PTOMEY: [Prosecutor]: Your Honor again for the record the State is waiving the death penalty in this cause.

THE COURT: Once it’s waived it’s always waived.

MS. WOODS: [Defense Counsel]: If the court intends to proceed with selection of only a six person jury we would like to raise our previous objection to that.

THE COURT: That has already been made and ruled upon.