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RODRIGUEZ-ACOSTA v. STATE

No. 85-1462.

548 So.2d 248 (1989)

Gabriel RODRIGUEZ-ACOSTA, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida, Third District.

March 28, 1989.

Attorney(s) appearing for the Case

Bennett H. Brummer, Public Defender and Sharon B. Jacobs, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BARKDULL, NESBITT and FERGUSON, JJ.

PER CURIAM.

A six-member jury found the appellant guilty of first degree murder and possession of a firearm during the commission of a felony. Appellant contends that, because his right to a twelve-member jury was waived without his valid or voluntary consent or ratification, it was fundamental error. We agree.

A person can be convicted of a capital crime by a jury of fewer than twelve, but only where there is a...

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