State v. Joseph , 561 So. 2d 534 ( 1990 )

561 So.2d 534 (1990)

STATE of Florida, Petitioner,
v.
Raymond JOSEPH, Respondent.

No. 74428.

Supreme Court of Florida.

March 29, 1990.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for petitioner.

Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.

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.