¶1Stephen R. Jewett of Steven R. Jewett, Orlando, for Appellant.
¶2Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
¶3DAUKSCH, Judge.
¶4This is an appeal from a conviction in a criminal case.
¶5Appellant 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.
¶6The 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).
¶7W. SHARP, J., concurs.
¶8PETERSON, C.J., concurs specially, with opinion.
¶9PETERSON, Chief Judge, concurring.
¶10I 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.