State Ex Rel. Gerstein v. Baker , 339 So. 2d 271 ( 1976 )

339 So. 2d 271 (1976)

STATE of Florida ex rel. Richard E. GERSTEIN, State Attorney for the Eleventh Judicial Circuit of Florida, Relator,
v.
The Honorable H. Paul BAKER and the Honorable Herbert M. Klein, As Judges of the Circuit Court of the Eleventh Judicial Circuit of Florida, Respondents.

No. 76-1720.

District Court of Appeal of Florida, Third District.

November 9, 1976.

Richard E. Gerstein, State Atty., and Kurt Marmar, Asst. State Atty., for relator.

George Nichols, Miami, for respondents.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

On September 9, 1976, the relator, Richard E. Gerstein, State Attorney of the Eleventh Judicial Circuit of Florida, filed a suggestion for writ of prohibition seeking to prohibit the respondents, judges of the Circuit Court of the Eleventh Judicial Circuit of Florida, from exercising jurisdiction of a cause without a jury where the State had not consented to such proceeding.

Florida R.Crim.P. 3.260, Waiver of Jury Trial, provides in toto:

A defendant may in writing waive a jury trial with the consent of the State. [Emphasis added.] 34 Fla. Stat. Ann. 38 (1975).

This rule was recently interpreted by us in Thomas v. State, 328 So. 2d 545 (Fla. 3d DCA 1976), and we follow our holding in that decision, to-wit: the state must consent to a waiver of a jury trial sought by a defendant.

We therefore order that the writ of prohibition sought by the relator be issued and made absolute.