¶1*1153 Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
¶2Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
¶3PER CURIAM.
¶4This is a direct appeal from a conviction for murder in the first degree and imposition of the death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
¶5Defendant, Eddie Freeman, challenged by a pretrial motion for declaratory judgment the constitutionality of the bifurcated insanity trial procedure as set forth in section 918.017(1), Florida Statutes (1977). The trial court ruled this statute constitutional and proceeded with the trial under the bifurcated format. Within three weeks of the verdict in this cause, this Court, in State ex rel. Boyd v. Green, 355 So.2d 789 (Fla. 1978), held this bifurcated insanity statute to be unconstitutional. Thereafter, the defendant timely filed a motion for a new trial on the basis of the Boyd decision, but the trial court denied said motion.
¶6In Ashcraft v. State, 367 So.2d 630 (Fla. 1979), the defendant made an oral motion immediately prior to trial which challenged the constitutionality of section 918.017(1), Florida Statutes (1977). The trial court denied the motion and proceeded with the trial under the bifurcated format. On the basis of our decision in Boyd, we held that the defendant who had timely objected to this bifurcated procedure was entitled to a new trial.
¶7In accordance with Boyd and Ashcraft, we find we must vacate defendant's conviction and sentence and remand to the trial court which shall proceed with a new trial in which the death penalty may be imposed.
¶8It is so ordered.
¶9ENGLAND, C.J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.