Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-161 _____________________________ JARED LEEVAN JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge. February 3, 2020 ROBERTS, J. The appellant, Jared Leevan Johnson, was convicted of the first-degree felony murder of his five-month-old son. He raises five issues on appeal, only one of which merits discussion. In Issue I, he argues the trial court erred by proceeding to trial with a six- person jury over his objection. The State concedes error in Issue I. We agree, reverse, and remand for a new trial. We affirm the appellant’s remaining issues without comment. In 2017, a grand jury indicted the appellant on a charge of first-degree felony murder predicated on aggravated child abuse. Felony murder is a “capital” felony punishable by death or life imprisonment. §§ 782.04 & 775.082, Fla. Stat. (2016). The prosecutor did not file notice of intent to seek the death penalty within forty-five days of arraignment as required by section 782.04(1)(b) and Florida Rule of Criminal Procedure 3.181, and the case proceeded without death as a possible punishment. In a review hearing in 2018, the trial court, on its own initiative, questioned whether a twelve-person jury was required. After hearing argument on the issue, the trial court determined a twelve-person jury was not required because the death penalty was not possible as a matter of law. Defense counsel strenuously objected that the appellant was on trial for a “capital” offense and was entitled to a twelve-person jury. * The appellant was convicted by a six-person jury, and this appeal follows. A criminal defendant has a constitutional right to a jury trial. U.S. Const. Amend. VI.; Art. I., § 16, Fla. Const. The number of jurors, “not fewer than six,” is fixed by law. Art I., § 22, Fla. Const. Florida permits six-person juries for felony criminal trials, a practice that has been upheld as constitutional. See Williams v. Florida, 399 U.S. 78 (1970); see also Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008) (discussing the constitutionality of Florida’s six-person jury trials). The right to a twelve-person jury is not a constitutional right but is a right provided by state statute and the rules of criminal procedure. See Jimenez v. State, 167 So. 3d 497, 499 (Fla. 3d DCA 2015). Florida law provides, “Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.” § 913.10, Fla. Stat.; see also Fla. R. Crim. P. 3.270 (providing same). In State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984), the Florida Supreme Court defined “capital case” under the statute and rule as a case where death is a possible penalty. Thereafter, the use of six-person juries has been upheld where the charged crime is classified as a “capital” offense, but the death penalty is not a possible penalty. See id. (upholding the use of a six-person jury in a trial for capital sexual battery of a child where the death penalty was not a legal possibility); Hall v. State, 853 So. 2d 546 (Fla. 1st DCA 2003), rev. denied 865 So. 2d 480 (Fla. 2003) (holding a twelve-person jury was not required in a retrial * The State did not object to a twelve-person jury. 2 for first-degree murder where the death penalty was precluded under principles of double jeopardy); Walling v. State, 105 So. 3d 660 (Fla. 1st DCA 2013) (holding a defendant was not entitled to a twelve-person jury for a trial on a first-degree felony murder committed when he was sixteen because the death penalty was not a legal possibility). The trial court here applied the logic of Hogan to conclude a twelve-person jury was not required in the appellant’s case because death was no longer a legal possibility upon expiration of the forty-five-day notice period. We disagree. In State v. Griffith, 561 So. 2d 528, 529 (Fla. 1990), the Florida Supreme Court recognized that neither the prosecutor nor the court, by electing not to seek the death penalty, could “change the classification of an offense from capital to noncapital and unilaterally determine whether a defendant is entitled to trial by a twelve-person jury.” The Court held a defendant indicted for first-degree murder is entitled to a twelve-person jury unless that right is waived jointly by the State and the defense. Id. (distinguishing Hogan on the basis of waiver). In State v. Poole, 561 So. 2d 535 (Fla. 1990), the Florida Supreme Court answered a certified question of whether a twelve-person jury was required in a first-degree murder case in which the prosecution waives the death penalty in the affirmative, holding, “[R]egardless of whether the state seeks the death penalty, a twelve-person jury is required in first-degree murder trials unless waived by the defense.” Id. In State v. Wong, 271 So. 3d 74, 75 (Fla. 3d DCA 2019), the Third District quashed a pretrial order requiring the defendant to proceed to trial for first-degree murder before a six-person jury where the State waived the death penalty, but the defendant did not waive his right to a twelve-person jury. The instant case is more analogous to Griffith, Poole, and Wong than to Hogan, Hall, and Walling. The prosecutor’s decision, whether intentional or unintentional, to let the forty-five-day notice period expire is tantamount to a waiver of the death penalty by the State. As discussed in Griffith, a precipitating action (or inaction) by the prosecution does not reclassify the offense from capital to noncapital and cannot deprive the appellant of his right to a twelve-person jury in his first-degree felony murder trial. Even if the trial court believed the State waived the death penalty, the appellant did not waive his right to be tried before a jury of 3 twelve, and the trial court erred in forcing him to trial with a six- person jury. See Wong, 271 So. 3d at 75. Accordingly, we reverse and remand for a new trial. REVERSED and REMANDED. WOLF and B.L. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General; Damaris E. Reynolds and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee. 4