Petition for Writ of Certiorari — Kenneth Lainell Davis, Petitioner v. Florida

No. __________

_________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________

KENNETH LAINELL DAVIS,

Petitioner,

v.

THE STATE OF FLORIDA,

Respondent.

______________________________________________

On Petition for a Writ of Certiorari

to Florida’s First District Court of Appeal

______________________________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________________

JESSICA J. YEARY

Public Defender

Second Judicial Circuit of Florida

BARBARA BUSHARIS

Assistant Public Defender

Counsel of Record for Davis

Member of the Bar of this Court

Second Judicial Circuit of Florida

301 S. Monroe St., Suite 401

Tallahassee, FL 32301

(850) 606-8500

victor.holder@flpd2.com

QUESTIONS PRESENTED

1. Whether the Sixth Amendment requires a twelve-person jury to try a criminal

defendant accused of a felony offense.

2. Whether the imposition of a lengthy mandatory minimum prison sentence upon a

juvenile offender violates the Eighth Amendment.

2

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ......................................................................................2

TABLE OF AUTHORITIES .....................................................................................4

JURISDICTION…………………………………………………………….……....7

CONSTITUTIONAL PROVISIONS INVOLVED………...…………………….....7

STATEMENT OF THE CASE………………………………………………….......9

REASONS FOR GRANTING THE PETITION…………………………………..12

I. Florida violated Davis’s Sixth and Fourteenth Amendment rights

when Davis was convicted by a jury of less than twelve

members…………………………………………………………...…….....12

II. Florida violated Davis's Eighth and Fourteenth Amendment

rights when the sentencing court imposed a mandatory

minimum prison sentence for an offense he allegedly committed

as a juvenile………………………………………………………………...24

CONCLUSION………………………………………………………………….....27

INDEX TO APPENDICES………………………………………………………...28

3

TABLE OF AUTHORITIES

CASES

PAGE(S)

Apodaca v. Oregon, 406 U.S. 404 (1972)…………….……........................13, 21, 22

Apprendi v. New Jersey, 530 U.S. 466 (2000)………………….……………..16, 17

Ballew v. Georgia, 435 U.S. 223 (1978)…………………………………...14-18, 20

Blair v. State, 698 So. 2d 1210 (Fla. 1997)………………………………………..18

Blakely v. Washington, 542 U.S. 296 (2004)………………………………...........17

Burch v. Louisiana, 441 U.S. 130 (1979)……………………………………...15, 16

Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008)…………………………18-20

Graham v. Florida, 560 U.S. 48 (2010)……………………………………………24

Jackson v. State, 926 So. 2d 1262 (Fla. 2006)………………………………………7

Johnson v. Louisiana, 406 U.S. 356 (1972)………………………………..13, 21, 22

Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA 2017)……………………………...21

Miller v. Alabama, 567 U.S. 460 (2012)………………………………………24, 25

Montgomery v. State, 230 So. 3d 1256 (Fla. 5th DCA 2017)……………………..26

Phillips v. State, 316 So. 3d 779 (Fla. 1st DCA 2021)…………………………….22

Ramos v. Louisiana, 140 S.Ct. 1390 (2020)…………………………………....21-22

State v. Houston-Sconiers, 188 Wash. 2d 1, 391 P.3d 409 (2017)……………25, 26

State v. Lyle, 854 N.W.2d 378 (Iowa 2014)……………………………………….26

4

Thompson v. State of Utah, 170 U.S. 343 (1898)………………………………….23

Williams v. Florida, 399 U.S. 78 (1970)……………………….………12, 14, 17-22

CONSTITUTIONAL PROVISIONS

PAGE(S)

Sixth Amendment, United States Constitution………...........7, 10, 12, 13, 14, 21, 22

Eighth Amendment, United States Constitution…………………………7, 10, 24-27

Fourteenth Amendment, United States Constitution……..7, 8, 10, 12, 14, 21, 24, 27

STATUTES

PAGE(S)

Section 775.082(3), Florida Statutes…………………………………………….9, 11

Section 775.087(2)(a)3, Florida Statutes……………………………………………9

Section 921.1402(6), Florida Statutes……………………………………………….9

5

PETITION FOR WRIT OF CERTIORARI

Kenneth Lainell Davis petitions for a writ of certiorari to review the decision

of Florida’s First District Court of Appeal.

OPINIONS BELOW

Following Davis’s conviction and sentence, both Davis and the State of

Florida filed appeals in Florida’s First District Court of Appeal. The appeals arose

from the same trial and were consolidated, but the First District issued separate

opinions under separate case numbers for each appeal. The decision of Florida’s

First District Court of Appeal was rendered in Davis’s appeal on May 25, 2022. See

Davis v. State, 2022 WL 1665012 (Fla. 1st DCA May 25, 2022). A copy of the

decision is attached as Appendix A.

6

JURISDICTION

The First District Court of Appeal affirmed Davis’s convictions without

opinion. The Florida Supreme Court has no discretionary jurisdiction to review a

per curiam affirmance without written opinion. See Jackson v. State, 926 So. 2d

1262, 1265 (Fla. 2006). The jurisdiction of this Court is invoked under 28 U.S.C. '

1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the state and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

7

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

8

STATEMENT OF THE CASE

The State of Florida charged Davis with one count of attempted seconddegree murder with a firearm, two counts of attempted armed robbery with a

firearm, one count of shooting a deadly missile, and one count of possession of a

firearm by a juvenile delinquent. Davis was a juvenile when the crimes occurred,

but he was charged as an adult. Davis was convicted as charged following a trial by

a six-person jury. The jury found that Davis discharged a firearm causing great

bodily harm to another person during the commission of the offenses.

For the attempted murder count, the trial court sentenced Davis to thirty years

in prison with a twenty-five-year mandatory minimum sentence for the firearm

discharge causing great bodily harm under Florida’s ten-twenty-life law at section

775.087(2)(a)3, Florida Statutes. The trial court ordered that pursuant to section

775.082(3)(c), Florida Statutes, after Davis serves twenty years in prison he is

eligible for a judicial review of his sentence so that the trial court may consider

modifying his sentence. Pursuant to section 921.1402(6), Florida Statutes, at the

judicial sentence review the trial court can consider whether Davis has

demonstrated maturity, rehabilitation, a decreased risk of reoffending, sincere and

sustained remorse, whether Davis has successfully obtained a high school

equivalency diploma or completed other educational or vocational programs,

9

whether Davis was the victim of sexual, physical, or emotional abuse before he

committed his offenses, and the results of any mental health assessment or risk

assessment regarding his rehabilitation. The trial court also imposed twenty-fiveyear mandatory minimum sentences pursuant to the 10-20-life law on the two

attempted robbery counts to run concurrently with the attempted murder sentence.

Following sentencing, Davis filed a motion to correct a sentencing error where he

argued that the imposition of the twenty-five year mandatory minimum sentences

for a juvenile offender violated the Eighth and Fourteenth Amendments (attached as

Appendix B). The trial court denied the motion. Davis appealed his convictions

and sentence to Florida’s First District Court of Appeal. The State also appealed

Davis’s sentence. Davis’s appeal and the State’s appeal were consolidated for the

purpose of briefing. The State argued that the trial court had misinterpreted Florida

statutes and that Davis was either not entitled to a judicial review of his sentence at

all or was not eligible for judicial review until he had served twenty-five years of

his sentence. Davis raised three issues on appeal: (1) that there was insufficient

evidence that he committed robbery; (2) that his trial by a six-person jury violated

the Sixth and Fourteenth Amendments; and (3) that the imposition of the twentyfive-year mandatory minimum sentences for discharging a firearm and causing

great bodily harm violated the Eighth and Fourteenth Amendments because Davis

10

was a juvenile when the offenses occurred and the trial court had no discretion to

consider his individual characteristics and circumstances before imposing the

mandatory minimum sentences. In the State appeal, the First District held that

section 775.082(3)(b)2.a., Florida Statutes, required Davis’s judicial review to be

conducted after he served twenty-five years of the sentence, not twenty years. In

Davis’s appeal, the First District affirmed Davis’s convictions and sentences in all

other respects without a written opinion. Pursuant to the First District’s opinion in

the State appeal, Davis was resentenced by the trial court with eligibility for a

judicial review of his sentence after twenty-five years. As a result, Davis’s sentence

now stands at thirty years prison with twenty-five-year mandatory minimum

sentences for the firearm discharge causing great bodily harm and eligibility for a

judicial review of his sentence after he serves twenty-five years. Currently he will

serve every day of the twenty-five-year mandatory minimum sentences before he is

ever eligible for a judicial review of his sentence.

11

REASONS FOR GRANTING THE PETITION

I. Florida violated Davis’s Sixth and Fourteenth

Amendment rights when Davis was convicted by a

jury of less than twelve members.

This case tests whether the Court’s holding in Williams v. Florida, 399 U.S.

78 (1970), that the Sixth Amendment right to a trial by jury does not compel a

twelve-member jury is still tenable following the Court’s more recent decisions in

which it has discarded the functional approach to jury trials in favor of the practice

of trial by jury as it existed at common law.

In Williams, the Court dismissed the common law practice of impaneling a

jury of twelve members when it determined “that the 12-man panel is not a

necessary ingredient of ‘trial by jury,’ and that [the] refusal to impanel more than

the six members provided for by Florida law did not violate [a defendant’s] Sixth

Amendment rights as applied to the States through the Fourteenth [Amendment].”

Williams at 86. The Court undertook a functional analysis of jury size, concluding

that twelve is no better than six for reaching a reliable verdict in criminal cases. Id.

at 99-100.

Thereafter, the Court again rejected historical norms in assessing the issue of

jury unanimity in state court criminal proceedings. Much like its analysis in

Williams, the Court concluded that jury unanimity is not required under the Sixth

12

Amendment – at least when juries are ten or larger – because it does not materially

contribute to the exercise of [jurors’] commonsense judgment.” Apodaca v. Oregon,

406 U.S. 404, 410 (1972). Applying a “functional” approach again, a plurality

“perceive[d] no difference between juries required to act unanimously and those

permitted to convict or acquit by votes of 10 to two or 11 to one” such that “the

interest of the defendant in having the judgment of his peers interposed between

himself and the officers of the State who prosecute and judge him is equally well

served” whether unanimity is required or not. Id. at 410-11. The various opinions,

concurring and dissenting, reflected no consensus on a coherent analytical

approach.

In Johnson v. Louisiana, 406 U.S. 356, 364 (1972), the Court addressed a

tiered jury system where “less serious crimes [are] tried by five jurors with

unanimous verdicts, more serious crimes required the assent of nine of 12 jurors,

and for the most serious crimes a unanimous verdict of 12 jurors is stipulated.” In

upholding a 9-3 verdict, the Court concluded that the differential jury system served

a rational interest, the state legislature “obviously intend[ing] to vary the difficulty

of proving guilt with the gravity of the offense and the severity of the punishment.”

Id. at 365.

13

The Court invalidated a five-member jury in Ballew v. Georgia, 435 U.S. 223

(1978), but no coherent framework emerged for analyzing jury size under the Sixth

Amendment. Two justices (Blackmun and Stevens) posited that juries of less than

six members substantially threatened the constitutional guarantee of the jury trial

right, notwithstanding the cost-saving and time-saving arguments that Georgia

advanced. Their analysis reflected that most of the major premises underlying the

functional approach in Williams were inaccurate. Justice White asserted that the

requirement that a jury be a fair cross-section of the community would be violated

with juries of less than six members. And three justices (Chief Justice Burger and

Justices Powell and Rehnquist) agreed that a conviction for serious offenses by

juries of five members “involves grave questions of fairness” and that “the line

between five- and six-member juries is difficult to justify, but a line has to be drawn

somewhere if the substance of jury trial is to be preserved.” Id. at 245-46. Finally,

three justices (Brennan, Stewart, and Marshall) concurred only in the holding that

“the Sixth and Fourteenth Amendments require juries in criminal trials to contain

more than five persons.” Id. at 246. The Ballew Court raised five key inadequacies

of a smaller jury:

First, recent empirical data suggest that progressively

smaller juries are less likely to foster effective group

deliberation. At some point, this decline leads to

inaccurate fact-finding and incorrect application of the

14

common sense of the community to the facts. Generally, a

positive correlation exists between group size and the

quality of both group performance and group productivity.

…

Second, the data now raise doubts about the accuracy of

the results achieved by smaller and smaller panels.

Statistical studies suggest that the risk of convicting an

innocent person… rises as the size of the jury diminishes.

…

Third, the data suggest that the verdicts of jury

deliberation in criminal cases will vary as juries become

smaller, and that the variance amounts to an imbalance to

the detriment of one side, the defense.

…

Fourth, what has just been said about the presence of

minority viewpoint as juries decrease in size foretells

problems not only for jury decision making, but also for

the representation of minority groups in the community.

The Court repeatedly has held that meaningful community

participation cannot be attained with the exclusion of

minorities or other identifiable groups from jury service.

… The exclusion of elements of the community from

participation contravenes the very idea of a jury…

composed of the peers or equals of the person whose

rights it is selected or summoned to determine.

…

Fifth, several authors have identified in jury research

methodological problems tending to mask differences in

the operation of smaller and larger juries such that

standard variances in smaller juries were greater.

Ballew at 232-39.

In Burch v. Louisiana, 441 U.S. 130 (1979), the Court again noted the lessthan-satisfactory nature of its functional approach, this time considering whether a

15

conviction for a non-petty state offense by a non-unanimous six-person jury was

constitutional. The Court stated:

As in Ballew, we do not pretend the ability to discern a

priori a bright line below which the number of jurors

participating in the trial or in the verdict would not

permit the jury to function in the manner required by our

prior cases. But having already departed from the strictly

historical requirements of jury trial, it is inevitable that

lines must be drawn somewhere if the substance of the

jury trial right is to be preserved.

Id. at 137.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court rejected a

functional approach to the right to a jury trial in favor of the “practice” of trial by

jury as it existed “at common law”:

As we have, unanimously, explained . . . the historical

foundation for our recognition of these principles extends

down centuries into the common law. “[T]o guard against

a spirit of oppression and tyranny on the part of rulers,”

and “as the great bulwark of [our] civil and political

liberties,” 2 J. Story, Commentaries on the Constitution of

the United States 540-541 (4th ed. 1873), trial by jury has

been understood to require that “the truth of every

accusation, whether preferred in the shape of indictment,

information, or appeal, should afterwards be confirmed by

the unanimous suffrage of twelve of [the

defendant’s]equals and neighbours . . . ” 4 W. Blackstone,

Commentaries on the Laws of England 343 (1769). See

also Duncan v. Louisiana, 391 U.S. 145, 151-154 (1968).

Apprendi at 477.

16

In Blakely v. Washington, 542 U.S. 296 (2004), in which the Court applied

Apprendi and clarified the definition of the “statutory maximum” for any offense,

the Court repeated its reference to the “suffrage of twelve” and then re-emphasized

the critical nature of trial by jury:

Our commitment to Apprendi in this context reflects not

just respect for longstanding precedent, but the need to

give intelligible content to the right of jury trial. That right

is no mere procedural formality, but a fundamental

reservation of power in our constitutional structure. Just

as suffrage ensures the people’s ultimate control in the

legislative and executive branches, jury trial is meant to

ensure their control in the judiciary. Apprendi carries out

this design by ensuring that the judge’s authority to

sentence derives wholly from the jury’s verdict. Without

that restriction, the jury would not exercise the control

that the Framers intended.

Id. at 305-06.

The Court in Blakely focused on “the Framers’ paradigm for criminal

justice.” Id. at 313. This shift in constitutional perspective calls into question the

Court’s holding in Williams, which was based on the functional approach to the

right to a jury trial.

Florida courts have also questioned the Williams holding.

The Florida

Supreme Court noted that the empirical studies Ballew relied upon supported the

use of a twelve-person jury:

17

Interestingly, this analysis and the social studies on jury

size and small group dynamics cited by the Court also

provide support for the traditional twelve-person jury, a

requirement the Court had refused to mandate in Williams

v. Florida.

Blair v. State, 698 So. 2d 1210, 1216 (Fla. 1997). Building upon the Court’s

Ballew holding, Florida’s Second District Court of Appeal cited to additional

empirical studies and other scholarly sources demonstrating the superiority of the

twelve-person jury in Gonzalez v. State, 982 So. 2d 77, 82-84 (Fla. 2d DCA 2008):

Mr. Gonzalez is not alone in arguing that advances in the

understanding of small group decision-making and trends

in the law of other states support another examination of

the Williams rationale. In 1995, the Committee on the

Rules of Practice and Procedure of the Judicial

Conference of the United States proposed that the Federal

Rules of Civil Procedure be amended to require twelveperson juries in civil cases. See Proposed Amendments to

the Federal Rules of Appellate, Bankruptcy, Civil,

Criminal Procedure and Evidence, 163 F.R.D. 91

(transmitted by the Committee on the Rules of Practice

and Procedure of the Judicial Conference of the United

States for Notice and Comment, September 1995). The

text of the proposed committee note to follow the

proposed amended rule explained:

Much has been learned since 1973 about the

advantages of twelve-member juries.

Twelve-member juries substantially increase

the representative quality of most juries,

greatly improving the probability that most

juries will include members of minority

groups. The sociological and psychological

dynamics of jury deliberation also are

18

strongly influenced by jury size. Members of

a twelve-person jury are less easily

dominated by an aggressive juror, better able

to recall the evidence, more likely to rise

above the biases and prejudices of individual

members, and enriched by a broader base of

community experience. The wisdom

enshrined in the twelve-member tradition is

increasingly demonstrated by contemporary

social science. Id. at 147.

On February 14, 2005, the American Bar Association

House of Delegates approved Principles for Juries and

Jury Trials, a document prepared by the American Jury

Project after an October 2004 symposium. Principle 3 is

entitled “Juries Should Have Twelve Members” and calls

for twelve-person juries in any criminal case that might

result in a penalty of confinement of over six months.

Moreover, as mentioned at the beginning of this opinion,

Florida is one of only two states that now consistently

allow serious felony cases to be decided by juries with as

few as six members. See David B. Rottman & Shauna M.

Strickland, State Court Organization 2004, United States

Department of Justice, Bureau of Justice Statistics, Table

42

at

233,

available

at

http://www.ojp.

usdoj.gov/bjs/abstract/sco04.htm (last visited Mar. 18,

2008).

The extensive development in the study of small group

decision-making since 1970 is well beyond the scope of

this opinion. There clearly is more scientific evidence

today than in 1970 that a twelve-person jury may be

superior to a six-person jury to accomplish the functions,

purposes, and goals identified by the Williams court.

Ensuing scholarship has criticized the empirical

authorities

upon

which

the Williams court

relied, see Robert H. Miller, Comment, Six of One Is Not

a Dozen of the Other: A Re-Examination of Williams v.

19

Florida and the Size of State Criminal Juries, 146 U. Pa.

L. Rev. 621, 652 (Jan. 1998), and collected more

empirical studies that contradict the conclusions of the

Court, see, e.g., Michael Saks & Mollie Weighner

Marti, A Meta-Analysis of the Effects of Jury Size, 21 L. &

Hum. Behav. 451 (1997). The scholarship and evidence in

this regard, however, are not undisputed, and the various

scientific theories are not necessarily cohesive.

In Mr. Miller's article, Six of One is Not a Dozen of the

Other: A Re-examination of Williams v. Florida and the

Size of State Criminal Juries, the author concludes:

As the Ballew Court admitted, we now know

that six- and twelve-person juries are not

functionally

equivalent,

as

the Williams Court assumed. We know that

recall of facts, testimony, and in-court

observations are compromised significantly

when a six-person jury is used in place of a

twelve-person jury. We know that the rate of

hung juries declines and the rate of

conviction rises when smaller juries are used.

We know that minority representation,

community representativeness, and quality of

deliberation all decrease when six-person

juries are used. Finally, we know that sixperson juries are less reliable than twelveperson juries, because they are less consistent

in rulings on similar cases and because they

decide all cases at greater variance from

larger community preferences.

146 U. Pa. L. Rev. at 682-83 (footnotes omitted).

Gonzalez at 82-84 (footnotes omitted).

20

The Court’s holding in Ramos v. Louisiana, 140 S.Ct. 1390 (2020), continues

the Court’s trend of discarding the functional approach to jury trials and again casts

doubt on the continued viability of Williams.

Ramos held that the Sixth

Amendment right to a jury trial requires that state court verdicts in criminal cases be

unanimous, overruling contrary precedents from the early 1970s (Apodaca and

Johnson). Justice Gorsuch wrote in Ramos:

There can be no question either that the Sixth

Amendment's unanimity requirement applies to state and

federal criminal trials equally. This Court has long

explained that the Sixth Amendment right to a jury trial

is “fundamental to the American scheme of justice” and

incorporated against the States under the Fourteenth

Amendment. This Court has long explained, too, that

incorporated provisions of the Bill of Rights bear the

same content when asserted against States as they do

when asserted against the federal government. So if the

Sixth Amendment's right to a jury trial requires a

unanimous verdict to support a conviction in federal

court, it requires no less in state court.

Ramos at 1397.

“On similar reasoning, if the Sixth Amendment right to jury trial requires a

twelve-member jury to support a criminal conviction – as is done in every federal

court (and almost every state court)1 – it isn’t much of a stretch to conclude that ‘it

1 Lessard v. State, 232 So. 3d 13, 16–17 (Fla. 1st DCA 2017) (Makar, J.,

concurring) (“The vast majority of states still choose twelve-person, unanimous

juries to convict in serious criminal cases. Forty-five states require twelve

unanimous jurors to convict for any felony (federal felony trials require twelve

21

requires no less in state court.’” Phillips v. State, 316 So. 3d 779, 787 (Fla. 1st DCA

2021) (J. Makar, concurring). Following Ramos, “[i]t seems a small step from the

demise of the reasoning in Apodaca and Johnson as announced in Ramos to

conclude that the reasoning in Williams, upon which both decisions relied, is also in

jeopardy.” Phillips at 788 (J. Makar, concurring). “For that reason… the issue of

jury size under the Sixth Amendment may be ripe for re-evaluation.” Id.

This case presents the Court with the opportunity to clarify its jurisprudence

regarding the Sixth Amendment’s jury size requirement for the trial of felony

offenses. The functional approach to jury size, upon which the Court’s opinion in

Williams stands, has seemingly been eroded by the Court’s more recent opinions.

The Court should now return to the longstanding precedent in place before

Williams, which focused on the meaning of the word “jury” as understood by the

founders at the time of the adoption of the Constitution:

Assuming, then, that the provisions of the constitution

relating to trials for crimes and to criminal prosecutions

apply to the territories of the United States, the next

inquiry is whether the jury referred to in the original

constitution and in the sixth amendment is a jury

jurors); a few states permit six to eight for specified felonies.” (footnotes omitted).

The “only other state [besides Florida] with six-person juries in felony cases is

Connecticut. All other state and federal felony prosecutions require twelve-person

juries.” Alisa Smith & Michael J. Saks, The Case For Overturning Williams v.

Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L.

Rev. 441, 443 (2008).

22

constituted, as it was at common law, of twelve persons,

neither more nor less. (Citation omitted.) This question

must be answered in the affirmative. When Magna

Charta declared that no freeman should be deprived of

life, etc., ‘but by the judgment of his peers or by the law

of the land,’ it referred to a trial by twelve jurors. Those

who emigrated to this country from England brought

with them this great privilege ‘as their birthright and

inheritance, as a part of that admirable common law

which had fenced around and interposed barriers on

every side against the approaches of arbitrary power.’

(Citation omitted.) In Bac. Abr. tit. ‘Juries,’ it is said:

‘The trial per pais, or by a jury of one's country, is justly

esteemed one of the principal excellencies of our

constitution; for what greater security can any person

have in his life, liberty, or estate than to be sure of the

being devested of nor injured in any of these without the

sense and verdict of twelve honest and impartial men of

his neighborhood? And hence we find the common law

herein confirmed by Magna Charta.’ So, in 1 Hale, P. C.

33: ‘The law of England hath afforded the best method of

trial that is possible of this and all other matters of fact,

namely, by a jury of twelve men all concurring in the

same judgment, by the testimony of witnesses viva voce

in the presence of the judge and jury, and by the

inspection and direction of the judge.’ It must

consequently be taken that the word ‘jury’ and the words

‘trial by jury’ were placed in the constitution of the

United States with reference to the meaning affixed to

them in the law as it was in this country and in England

at the time of the adoption of that instrument; and that

when Thompson committed the offense of grand larceny

in the territory of Utah – which was under the complete

jurisdiction of the United States for all purposes of

government and legislation – the supreme law of the land

required that he should be tried by a jury composed of

not less than twelve persons.

Thompson v. State of Utah, 170 U.S. 343, 349-50 (1898).

23

II. Florida violated Davis's Eighth and Fourteenth

Amendment rights when the sentencing court

imposed a mandatory minimum prison sentence for

an offense he allegedly committed as a juvenile.

This case tests whether a lengthy mandatory minimum prison sentence can

be constitutionally imposed upon a juvenile offender where the sentencing court

has no discretion whether to impose the mandatory minimum sentence and no

ability to consider the juvenile’s individual characteristics and circumstances

before implementing the lengthy mandatory minimum prison sentence.

Children are different. Miller v. Alabama, 567 U.S. 460 (2012).

That

difference has constitutional ramifications. Graham v. Florida, 560 U.S. 48, 76

(2010) (“An offender’s age is relevant to the Eighth Amendment,” so “criminal

procedure laws that fail to take defendants’ youthfulness into account at all would

be flawed.”). Juveniles are less deserving of the most severe punishments because

they have lessened culpability. Id. at 68. “As compared to adults, juveniles have a

lack of maturity and an underdeveloped sense of responsibility; they are more

vulnerable or susceptible to negative influences and outside pressures, including

peer pressure; and their characters are not as well formed.” Id. “Juvenile offenders

cannot with reliability be classified among the worst offenders.” Id. Youth is “a

time of immaturity, irresponsibility, impetuousness, and recklessness.” Miller at

476. It is “a condition of life when a person may be most susceptible to influence

24

and to psychological damage.” Id. Youth’s “signature qualities are all transient.”

Id.

“[A] sentencing rule permissible for adults may not be so for children.” Id.

at 481. “[M]andatory penalties, by their nature, preclude a sentencer from taking

account of an offender’s age and the wealth of characteristics and circumstances

attendant to it.” Id.

A mandatory sentence gives no consideration to “the

mitigating qualities of youth.” Id. at 475-76. Mandatory minimum sentencing

schemes, while constitutionally valid for imposing increased punishment for adult

offenders, should be declared unconstitutional as applied to juveniles. Sentencing

courts should have discretion to consider mitigating circumstances associated with

the youth of a juvenile defendant when fashioning a sentence. The minimum

mandatory provision prevents a sentencing judge from imposing a sentence shorter

than the minimum mandatory term even where the sentencing judge feels the

shorter term is appropriate based on the juvenile’s individualized sentencing

factors.

The Washington Supreme Court has held that mandatory minimum

sentences for juveniles violate the Eighth Amendment. State v. Houston-Sconiers,

188 Wash. 2d 1, 20, 391 P.3d 409, 420 (2017) (“[W]e see no way to avoid the

Eighth Amendment requirement to treat children differently, with discretion, and

25

with consideration of mitigating factors” when a juvenile is facing a mandatory

minimum sentence for possessing a firearm while committing an offense). The

Iowa Supreme Court has held that mandatory minimum sentences for juvenile

offenders constitute cruel and unusual punishment. State v. Lyle, 854 N.W.2d 378,

400 (Iowa 2014) (“Mandatory minimum sentences for juveniles are simply too

punitive for what we know about juveniles.”). Florida’s Fifth District Court of

Appeal has held that mandatory minimum prison sentences for juvenile nonhomicide offenders would be violative of the Eighth Amendment if it were not for

the availability of judicial sentence review. Montgomery v. State, 230 So. 3d 1256,

1263 (Fla. 5th DCA 2017) (“[W]e hold that the mandatory minimum twenty-fiveyear mandatory minimum sentence at issue in this case does not constitute cruel

and unusual punishment when applied to a juvenile offender as long as he or she

gets the mandated judicial review.”). In Montgomery, the juvenile was eligible for

judicial sentence review before he served all of the mandatory minimum term.

Davis should have received individualized sentencing consideration with a

resulting sentence that was not predetermined by the constraints of a twenty-fiveyear mandatory minimum prison sentence. As a result of his sentence, Davis will

serve every day of the twenty-five-year mandatory minimum prison sentences

before he is ever eligible for a judicial review of his sentence where his individual

26

characteristics and circumstances can be considered by the trial court. The Eighth

and Fourteenth Amendments required that the trial court have discretion to

sentence Davis, a juvenile offender, to less than the twenty-five year mandatory

minimum prison sentences.

CONCLUSION

Davis respectfully requests that the Court grant a writ of certiorari to review

the judgment of Florida’s First District Court of Appeal.

/s/ Barbara Busharis

_

BARBARA BUSHARIS

Assistant Public Defender

Office of the Public Defender,

Second Judicial Circuit of Florida

301 S. Monroe Street, Suite 401

Tallahassee, FL 32301

Florida Bar # 71780

Member of the Bar of this Court

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INDEX TO APPENDICES

Appendix A:

Decision of Florida’s First District Court of Appeal dated May 25, 2022.

Appendix B:

Motion to Correct Sentencing Error filed in the Fourth Judicial Circuit in and

for Duval County, Florida

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