GAMBLE v. STATE (1997)

This is an appeal from a conviction in a criminal case.

Appellant was being tried for various narcotics-related charges when one of the jurors became incapacitated and was excused.   This left only five jurors to decide appellant's case.   The case proceeded to verdict upon receiving a waiver of appellant's rights by his lawyer.

The accused was not informed by the court of his constitutionally mandated right to a six-person jury, nor was he consulted as to his wishes in that regard.  Art. 1 § 22, Fla. Const.;  Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978).   That was error and a new trial is the only remedy.   See Blair v. State, 667 So.2d 834 (Fla. 4th DCA), rev. granted, 680 So.2d 421 (Fla.1996).

I write only to note the lesson to be learned here is that waiver of a full member jury should only be accepted by the trial judge when given personally by a defendant who has had his constitutional rights explained to him by his attorney or the court.

DAUKSCH, Judge.

W. SHARP, J., concurs. PETERSON, C.J., concurs specially, with opinion.