Carpman and Jacques Aghion (“Aghion”) appeal a final judgment after a jury trial in two consolidated cases awarding damages for breach of fiduciary duty, civil conspiracy and civil theft. We affirm the final judgment as to appellants, Jose Corkidi, Max Carlos Lederman, Michael Levin, Hannah Levin and Irving Carpman. We reverse the final judgment only as to appellant Aghion and remand for a new trial solely on the issue of damages. On appeal, the sole meritorious point raised is Aghion’s contention that his due process rights were violated by the fact that he neither had the opportunity to join in nor to challenge the stipulated to-proee-dure during trial of proceeding with a jury panel consisting of five jurors, as opposed to six after one of the jurors becam 301, 34 So. 241 (1908) (<HOLDING>); Wallace v. State, 722 So.2d 913 (Fla. 2d DCA
holding that when the defendant is not present in person or by an attorney at trial he does not waive the right to a twelvemember jury where the case is tried by six jurors the sufficiency of the waiver is determined by whether the waiver was knowing and intelligent holding that the constitutional right to a sixmember jury may be waived by a knowing and intelligent waiver recognizing requirement of knowing intelligent waiver holding that under the sixth amendment a criminal defendant may waive his right to counsel if that waiver is knowing intelligent and voluntary holding that statute of limitations is an affirmative defense is waived if not raised in the trial court and does not require a knowing and intelligent waiver