STATE v. POOLE

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.

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.

It is so ordered.

EHRLICH, C.J., and SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice, dissenting.

I dissent for the reasons I expressed in State v. Griffith, 561 So.2d 528 (Fla. 1990). Poole has no statutory right to a twelve-person jury since this is no longer a capital case.