Petition for Writ of Certiorari — Joseph Aiken, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JOSEPH AIKEN, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSEPH AIKEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D22-1437

[July 13, 2023]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit,

Martin County; Robert R. Makemson, Judge; L.T. Case No.

432020CF001073A.

Carey Haughwout, Public Defender, and Christine C. Geraghty,

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Sorraya M. SolagesJones, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

WARNER, DAMOORGIAN and KUNTZ, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

IV.

Aiken was entitled to a twelve-person jury under the

Sixth and Fourteenth Amendments, and he did not

waive that right.

Aiken acknowledges this Court’s ruling in Guzman v. State, 350

So. 3d 72 (Fla. 4th DCA 2022), which relied on Williams v. Florida,

399 U.S. 78, 86 (1970). Guzman also noted the case of State v.

Khorrami, No. 1 CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App.

July 29, 2021), which at the time had a petition for a writ of certiorari

on this issue pending in the United States Supreme Court (docket

No. 21-1553). Unfortunately, the US Supreme Court has denied

certiorari in Khorrami.

Despite the denial of certiorari in Khorrami, undersigned

counsel is hopeful that a similar case will soon be taken up and

Williams can be reconsidered. In order to pursue that hope with this

case, or to at least keep this case in the appellate pipeline should

another case be taken, undersigned counsel asks this Court, if it is

inclined to follow Guzman and affirm this issue, to include a citation

to Guzman. See Sandoval v. State, 884 So. 2d 214, 216 n.1 (Fla. 2d

DCA 2004) (“Counsel has the responsibility to make such objections

at sentencing as may be necessary to keep the defendant’s case in an

appellate ‘pipeline.’”); see also R. Regulating Fla. Bar 4-3.1 (stating

34

that a lawyer may assert an issue involving “a good faith argument

for an extension, modification, or reversal of existing law”); United

States v. Marseille, 377 F.3d 1249, 1257 & n.14 (11th Cir. 2004)

(defendant making an argument he knows must lose for purposes of

preserving it for a later court).

The standard of review of constitutional claims is de novo. See

A.B. v. Fla. Dept. of Children & Family Servs., 901 So. 2d 324, 326

(Fla. 3d DCA 2005).

Aiken was convicted by a jury comprised of a mere six people.

T443–44. This was in violation of the Sixth and Fourteenth

Amendments’ guarantee of a right to a twelve-person jury when the

defendant is charged with a felony.

Although the United States Supreme Court held in Williams v.

Florida, 399 U.S. 78, 86 (1970), that juries as small as six were

constitutionally permissible, Williams is impossible to square with

the Supreme Court’s more recent ruling in Ramos v. Louisiana, 140

S. Ct. 1390 (2020), which concluded that the Sixth Amendment’s

“trial by an impartial jury” requirement encompasses what the term

“meant at the time of the Sixth Amendment’s adoption.” Id. at 1395;

U.S. CONST. amend. VI.

35

Prior to 1970, subjecting Aiken to a trial with only six jurors

would have indisputably violated his Sixth Amendment rights. As the

Ramos Court observed, even Blackstone recognized that under the

common law, “no person could be found guilty of a serious crime

unless ‘the truth of every accusation … should … be confirmed by

the unanimous suffrage of twelve of his equals and neighbors[.]”

Ramos, 140 S. Ct. at 1395. “A ‘verdict, taken from eleven, was no

verdict’ at all.” Id.

After the Sixth Amendment was enacted, a bevy of state

courts—ranging from Alabama to Missouri to New Hampshire—

interpreted it to require a twelve-person jury. See Miller, Comment,

Six of One Is Not A Dozen of the Other, 146 U. PA. L. REV. 621, 643

n.133 (1998) (collecting cases from the late 1700s to the 1860s). In

1898, the United States Supreme Court added its voice to the chorus,

noting that the Sixth Amendment protects a defendant’s right to be

tried by a twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349350 (1898) overruled on other grounds by Collins v. Youngblood, 497

U.S. 37, 51-52 (1990). As the Thompson Court explained, since the

time of Magna Carta, the word “jury” had been understood to mean

a body of twelve people. Id. Given that understanding had been

36

accepted since 1215, the Court reasoned, “[i]t must” have been “that

the word ‘jury’” in the Sixth Amendment was “placed in the

constitution of the United States with reference to [that] meaning

affixed to [it].” Id. at 350.

The Supreme Court continued to cite the basic principle that

the Sixth Amendment requires a twelve-person jury in criminal cases

for seventy more years. For example, in 1900, the Court explained

that “there [could] be no doubt” “[t]hat a jury composed, as at

common law, of twelve jurors was intended by the Sixth Amendment

to the Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586

(1900). Thirty years later, the Court reiterated that it was “not open

to question” that “the phrase ‘trial by jury’” in the Constitution

incorporated juries’ “essential elements” as “they were recognized in

this country and England,” including the requirement that they

“consist of twelve men, neither more nor less.” Patton v. United States,

281 U.S. 276, 288 (1930). And as recently as 1968, the Court

remarked that “by the time our Constitution was written, jury trial in

criminal cases had been in existence in England for several centuries

and carried impressive credentials traced by many to Magna Carta,”

such as the necessary inclusion of twelve members. Duncan v.

37

Louisiana, 391 U.S. 145, 151-152 (1968). 1

0F

In 1970, however, the Williams Court overruled this line of

precedent in a decision that Justice Harlan described as “stripping

off the livery of history from the jury trial” and ignoring both “the

intent of the Framers” and the Court’s long held understanding that

constitutional “provisions are framed in the language of the English

common law [] and … read in the light of its history.” Baldwin v. New

York, 399 U.S. 117, 122-24 (1970) (citation omitted) (Harlan, J.,

concurring in the result in Williams). Indeed, Williams recognized that

the Framers “may well” have had “the usual expectation” in drafting

the Sixth Amendment “that the jury would consist of 12” members.

Williams, 399 U.S. at 98-99. But Williams concluded that such

“purely historical considerations” were not dispositive. Id. at 99.

Rather, the Court focused on the “function” that the jury plays in the

Constitution, concluding that the “essential feature” of a jury is it

See also, e.g., Capital Traction Co v. Hof, 174 U.S. 1, 13 (1899)

(“‘Trial by jury,’ in the primary and usual sense of the term at the

common law and in the American constitutions, is not merely a trial

by a jury of 12 men” but also contains other requirements);

Rassmussen v. United States, 197 U.S. 516, 529 (1905) (“The

constitutional requirement that ‘the trial of all crimes, except in cases

of impeachment, shall be by jury,’ means, as this court has adjudged,

a trial by the historical, common-law jury of twelve persons”).

1

38

leaves justice to the “commonsense judgment of a group of laymen”

and thus allows “guilt or innocence” to be determined via “community

participation and [with] shared responsibility.” Id. at 100-01.

According to the Williams Court, both “currently available evidence

[and] theory” suggested that function could just as easily be

performed with six jurors as with twelve. Id. at 101-102 & n.48; cf.

Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging that

Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

Williams’s ruling that the Sixth Amendment (as incorporated to

the States by the Fourteenth) permits a six-person jury cannot stand

in light of Ramos. There, the Supreme Court held that the Sixth

Amendment requires a unanimous verdict to convict a defendant of

a serious offense. In reaching that conclusion, the Ramos Court

overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that

it faulted for “subject[ing] the ancient guarantee of a unanimous jury

verdict to its own functionalist assessment.” Ramos, 140 S. Ct. at

1401-02.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” the Court undertook in

39

Williams, observing that it is not the Court’s role to “distinguish

between the historic features of common law jury trials that (we

think) serve ‘important enough functions to migrate silently into the

Sixth Amendment and those that don’t.’” Ramos, 140 S. Ct. at 140001. Ultimately, the Ramos Court explained, the question is whether

“at the time of the Sixth Amendment’s adoption, the right to trial by

jury included” the particular feature at issue. Id. at 1402. As the

history summarized above establishes, there can be no serious doubt

that the common understanding of the jury trial during the

Revolutionary War era was that twelve jurors were required—“a

verdict, taken from eleven, was no verdict at all.” See id. at 1395

(quotation marks omitted).

Even setting aside Williams’s now-disfavored functionalist logic,

its ruling suffered from another significant flaw: it was based on

research that was out of date shortly after the opinion issued.

Specifically, the Williams Court “f[ou]nd little reason to think”

that the goals of the jury guarantee—including, among others, “to

provide a fair possibility for obtaining a representative[] cross-section

of the community”—“are in any meaningful sense less likely to be

achieved when the jury numbers six, than when it numbers 12.”

40

Williams, 399 U.S. at 100. The Court theorized that “in practice the

difference between the 12-man and the six-man jury in terms of the

cross-section of the community represented seems likely to be

negligible.” Id. at 102.

In the time since Williams, that determination has proven

incorrect. Indeed, the Court acknowledged as much just eight years

later in Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded

that the Sixth Amendment barred the use of a five-person jury.

Although Ballew did not overturn Williams, the Ballew Court

observed that empirical studies conducted in the handful of

intervening years highlighted several problems with Williams’

assumptions. For example, Ballew noted that more recent research

showed that (1) “smaller juries are less likely to foster effective group

deliberation,” id. at 232, (2) smaller juries may be less accurate and

cause “increasing inconsistency” in verdict results, id. at 234, (3) the

chance

for

hung

juries

decreases

with

smaller

juries,

disproportionally harming the defendant, id. at 236; and (4)

decreasing jury sizes “foretell[] problems … for the representation of

minority groups in the community,” undermining a jury’s likelihood

of being “truly representative of the community,” id. at 236-37.

41

Moreover, the Ballew Court “admit[ted]” that it “d[id] not

pretend to discern a clear line between six members and five,”

effectively acknowledging that the studies it relied on also cast doubt

on the effectiveness of the six-member jury. Id. at 239; see also id. at

245-46 (Powell, J., concurring) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).

Post-Ballew

research

has

further

undermined

Williams.

Current empirical evidence indicates that “reducing jury size

inevitably has a drastic effect on the representation of minority group

members on the jury.” Diamond et al., Achieving Diversity on the

Jury: Jury Size and the Peremptory Challenge, 6 J. OF EMPIRICAL LEGAL

STUD. 425, 427 (Sept. 2009); see also Higginbotham et al., Better by

the Dozen: Bringing Back the Twelve-Person Civil Jury, 104

Judicature 47, 52 (Summer 2020) (“Larger juries are also more

inclusive and more representative of the community. … In reality,

cutting the size of the jury dramatically increases the chance of

excluding minorities.”). Because “the 12-member jury produces

significantly greater heterogeneity than does the six-member jury,”

Diamond et al., at 449, it increases “the opportunity for meaningful

42

and appropriate representation” and helps ensure that juries

“represent adequately a cross-section of the community.” Ballew, 435

U.S. at 237.

Other important considerations also weigh in favor of the

twelve-member jury. For instance, studies indicate that twelvemember juries deliberate longer, recall evidence better, and rely less

on irrelevant factors during deliberation. See Smith & Saks, The Case

for Overturning Williams v. Florida and the Six-Person Jury, 60 FLA. L.

REV. 441, 465 (2008). Minority views are also more likely to be

thoroughly expressed in a larger jury, as “having a large minority

helps

make

the

minority

subgroup

more

influential,”

and,

unsurprisingly, “the chance of minority members having allies is

greater on a twelve-person jury.” Id. at 466. Finally, larger juries

deliver more predictable results. In the civil context, for example,

“[s]ix-person juries are four times more likely to return extremely

high or low damage awards compared to the average.” Higginbotham

et al., at 52.

Aiken recognizes that the state constitution provides:

SECTION 22. Trial by jury.—The right of trial by jury shall be

secure to all and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed by law.

43

Art. I, § 22, Fla. Const. And he recognizes that section 913.10, Florida

Statutes, provides for six jurors except in capital cases. See also Fla.

R. Crim. P. 3.270.

But Florida’s provision for a jury of six stems from the dawn of

the Jim Crow era, one month after federal troops were withdrawn

from the state. The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was amended

to provide that the number of jurors “for the trial of causes in any

court may be fixed by law.” See Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241, 241 (Fla. 1903).

The common law rule of a jury of twelve was still kept in Florida

while federal troops remained in the state. There was no provision for

a jury of less than twelve until the Legislature enacted a provision

specifying a jury of six in Chapter 3010, section 6. See Gibson v.

State, 16 Fla. 291, 297–98 (1877) (quoting and discussing Chapter

3010, section 6, Laws of Florida (1877)); Florida Fertilizer, 34 So. at

241 (noting that previously all juries had twelve members).

The Legislature enacted chapter 3010 with the jury-of-six

provision on February 17, 1877. Gibson, 16 Fla. at 294. This was less

44

than a month after the last federal troops were withdrawn from

Florida in January 1877. See JERRELL H. SHOFNER, Reconstruction and

Renewal, 1865-1877, in THE HISTORY OF FLORIDA 273 (Michael

Gannon, ed., first paperback edition 2018) (“there were [no] federal

troops” in Florida after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow

era as former Confederates regained power in southern states and

state prosecutors made a concerted effort to prevent Blacks from

serving on jurors.

On its face the 1868 constitution extended the franchise to

Black men. But the historical context shows that that it was part of

the overall resistance to Reconstruction efforts to protect the rights

of Black citizens. The constitution was the product of a remarkable

series of events including a coup in which leaders of the white

southern (or native) faction took possession of the assembly hall in

the middle of the night, excluding Radical Republican delegates from

the proceedings. See Richard L. Hume, Membership of the Florida

Constitutional Convention of 1868: A Case Study of Republican

Factionalism in the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6

(1972); SHOFNER, at 266. A reconciliation was effected as the “outside”

45

whites “united with the majority of the body’s native whites to frame

a constitution designed to continue white dominance.” Hume at 15.

The racist purpose of the resulting constitution was spelled out

by Harrison Reed, a leader of the prevailing faction and the first

governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar Blacks from

legislative office:

Under our Constitution the Judiciary & State officers will be

appointed & the apportionment will prevent a negro legislature.

Hume, at 15-16. See also SHOFNER, at 266.

In Ramos, Justice Gorsuch noted that the Louisiana nonunanimity rule arose from Jim Crow era efforts to enforce white

supremacy. Ramos, 140 So. Ct. at 1394; see also id. at 1417

(Kavanaugh, J., concurring) (non-unanimity was enacted “as one

pillar of a comprehensive and brutal program of racist Jim Crow

measures against African-Americans, especially in voting and jury

service.”). The history of Florida’s jury of six arises from the same

historical context.

In view of the foregoing, a jury of six at a criminal trial is

unconstitutional under the Sixth and Fourteenth Amendments of the

46

United States Constitution. See U.S. CONST. amend. VI, U.S. CONST.

amend. XIV.

Finally, Aiken did not waive his Sixth Amendment right to a

twelve-person jury. A defendant may waive his right to a

constitutional jury, but the “express and intelligent consent of the

defendant” is required. Patton, 281 U.S. at 312. See also Johnson v.

State, 994 So. 2d 960, 964 (Fla. 2008) (holding Johnson’s general

silence “did not constitute a valid waiver” to “his right to a jury trial”).

This Court should reverse the judgment and sentence and

remand for a new trial with a twelve-person jury, as required by the

Sixth

and

Fourteenth

Amendments

Constitution.

47

to

the

United

States

Recorded in Martin County, FL 5/6/2022 8:58 AM

Carolyn Timmann, Clerk of the Circuit Cou11 & Com1Jtroller

~ = ='lilCFN#2958845 BK 3311 PG 1774 PAGE 1 of 12

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY FLORIDA

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX

OBTS#: 4302101169

STATE OF FLORIDA

vs.

. JOSEPH DEVON AIKEN

Defendant.

Judgment·

PROBATION VIOLATOR

COMMUNITY CONTROL VIOLATOR

MODIFICATION .

RESENTENCE

The defendant, JOSEPH DEVON AIKEN, being personally before the court represented by

JORDAN M SHOWE, the attorney ofrecord and the state represented by MARCUS

JOHNSON and having

been tried and found guilty by j~/by court of the following crime(s):

CNT# Statute

.Statute Description

893.135(1kl)

Level/Degree

TRAFFICKING IN PHENETHYLAMINES - 10

Felony/FIRST

GRAMS OR ~ORE BUT LESS THAN 200 GRAMS . DEGREE

The _ PROBATION _ COMMUNITY CONTROL previously ordered in this case is

·

revoked.

PRIOR ADJUDICATION on - - - - -~ 0 It is ordered that the defendant is hereby Guilty of the above crime(s).

It is ordered that the defendant is hereby Adjudication Withheld ofthe ..above crime(s).

121 and being a qualified offender pursuant to s. 943.325, the defendant s~all be required to

submit DNA samples as required by law.

DONE and ORDERED at Martin County, Florida this Th~ , May 5, 2022.

.

K~

CIRCUIT JlJDGROBERT MAKEMSON

~

·

10 :II WV S,.. J..VlHZOZ

Page _ f_ ofj1i_

231

CFN#2958845 BK 3311 PG 1775 PAGE 2 of 12

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA,

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX

vs.

JOSEPH DEVON AIKEN

Defendant.

Charges/Costs/Fees

The defendant is hereby ordered to pay the following sums:

FEL CIVIL LIEN PD APPL 40

STATE ATTY PROSECUTION CS

Felony Costs plus 5% and Mandatory Fine

$

$

$

50.00 10/13/2020

200.00 05/05/2022

52,915.00 05/05/2022 ·

_ __ OTHER _ _ _ _ __

Total Assessed at Judgment: $53,165.00

Total Assessment balance: $53,165.00

DONE and ORDERED •.t Martin Couoty, Florida t h i g ~ ·

CIRCUIT JUD E ROBERT MAKEMSON

Page _Z_ of -1..d:i_

232

CFN#2958845 BK 3311 PG 1776 PAGE 3 of 12

STATE OF FLORIDA

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND .FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA

vs.

JOSEPH DEVON AIKEN

Defendant.

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX

Sentence

(As to Count _!__J

The defend~nt, being personally before this court, accompanied by the defendants' attorney of

record, JORDAN M SHOWE, and having been adjudicated guilty herein, and the court having

given the defendant an opportunity to be heard and to offer matters in mitigation of sentence, and

to show cause why the defendant should not be sentenced as provided by law, and no cause being

shown.

(Check applicable provision)

D and the court having on deferred imposition of sentence until this

date 05/05/2022.

D and the court having previously entered a judgment in this case on _ _ _ _ __ _ now

resentences the defendant

D and the court having placed the defendant on probation/community control atid having

subsequently revoked the defendant's probation/community control

IT IS THE SENTENCE OF THE COURT that:

121' The Defendant is hereby committed to the custody of the PRISON.

D The defendant pay a fine pursuant to section 775.083, Florida Statutes, plus a 5% surcharge

pursuant to section 950.25 Florida Statutes, as indicated on the Fine/Costs/Fee Page.

D The defendant is sentenced as a youthful offender in accordance with section 958.04,

Florida Statutes.

.,

TO BE IMPRISONED:

21 For a term of 12.00 years

In the event the defendant is ordered to serve additional split sentences, all incarcerations portions

shall be satisfied before the defendant begins service to the supervision terms.

Page~ of __i_2i_

233

CFN#2958845 BK 3311 PG 1777 PAGE 4 of 12

STATE OF FLORIDA

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX ·

VS.

JOSEPH DEVON AIK,EN

Defendant.

Special Provisions

(As to Count _ _ )

By appropriate notation, the following provisions apply to the sentence imposed: .

Mandatory/Minimum Provisions: .

Firearm/Weapon

It is f\1rther ordered that the _ _ -year minimum imprisonment provisions of section 775.087,

Florida Statutes, is hereby imposed for the sentence specified in this court.

Drug T,-:Jficking

It is fu~her ordered that t h e ~ -year mandatory minimum imprisonment provisions of section

893.135(1), Florida Statutes, is hereby imposed for the sentence specified in this court.

Controlled Substance Within I, 000 Feet ofSchool/Park/Comm11nity Center

It is further ordered that the 3-year minimum imprisonment provisions of section 893. 13, Florida

Statutes, is hereby imposed for the sentence specified in this count.

Habi111al/Felony Offender

The Defendant is adjudicated a habitual felony offender and has been sentenced to an

extended term in accordance with the provisions of section 775.084{4)(a), Florida Statutes.

'fhe requisite findings by the court are set forth in a separate order or stated on the

record in open court.

Habit11al Violent Felony Offender

The defendant is adjudicated a habitual violent felony offender and has been sentenced to the

extended term in accordance with the provisions of section 775.084(4)(b), Florida Statuies. A

minimum term.of ____-ycar(s) must be served prior to release. The requisite findings of

the court are set forth in a separate order or stated on the record in open court.

Law Enforcement Protection Act·

It is further ordered that the defendant shall serve a minimum of _ _ _-years before release in

accordance with section 775.0923, Florida Statutes.

Capital Offense

It is further ordered that the defendant ·shall serve no less than 24 years in accordance with _the

provisions of section 775.082(1 ), Florida Statutes.

Short-Barreled Rifle, Shotgun, Machine Gun

It is further ordered that the 5-year minimum provisions ofsection 790.221(2), Florida Statutes, arc

hereby imposed·for the sentence specified in this court.

Continuing Criminal Enterprise

It is further ordered that the 25-year minimurn sentence provisions of section 893.20, Florida

Statutes, are hereby imposed for the seritence specified in this court.

Taking a law Enforcement Officer's Firearm

It is further ordered that the 3-year minimum provisions of section 775.0875(1), Florida Statutc.s,

are hereby imposed for the sentence specified in this court.

leaving the Scene ofan Accident with Death

It is further ordered that the 4-year minimum sentence provisions of section 316.027(2)(c), Florida

Statutes, are hereby imposed for the sentence specified in this court.

Page

A_ of _ili_ ·

234

CFN#2958845 BK 3311 PG 1778 PAGE 5 of 12

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX

STATE OF FLORIDA

vs.

JOSEPH DEVON AIKEN

Defendant.

Other Provisions:

Retention of 947.16(3 ),

Florida Jurisdiction

_ _ The court retains jurisdictfon over the defendant pursuant to section Statutes

(1983).

·

.

Jail Credit

/ It is further ordered that the defendant shall be allowed a total

- - credit for time incarcerated before imposition of this sentence.

Credit for Time Served

iii Resentencing after

Violation of Probation or

Community Control

of603 /days

---

It is further ordered that the defendant be allowed. _ _ _ _ _ _ days time

served between date of arrest as a violator following release from prison to the

date of resentencing. The Department of Corrections. shall apply original jail

time credit and shall cqmpute and- apply original jail time credit and shall

compute and apply· original jail time credit and shall compute and apply credit

for time served and unforfeited gain time previously -awarded on case/count

(Offenses committed before October 1, 1989)

_ _It is further ordered that the defendant be allowed _ _ _ _ days ti~e served

between date of arrest as a violator following release from prison to_the date of

resentencing. The Department of Corrections shall apply original jail time credit

and shall compute and apply credit for time served on case/count

(Offenses committed between October 1, 1989, and December 31, 1993) ·

__·_ The Court deems the unforfeited gain time previously awarded on the above

case/count forfeited under section 948.06(6).

_ _ The Court allows unforfeited gain time previously awarded on the above

case/count. {Gain time may be subject to forfeiture by the Department of

Corrections under section 944.28(-1).

It is further ordered that the defendant shall be allowed _ _ _ _days time

served between date of arrest as a violator following release from prison to the·

date of resentencing. The Department" of Corrections shall apply original j ail·

time credit and shall compute and apply credit for time served only pursuant to

section 921.0017. Florida Statutes, on case/cou n t - ~ ~ - - - - · (Offenses

committed on or after January 1, 1994)

Consecutive/Concurrent

_ _ It is further ordered that the sentence imposed for this count _ _ shall run

(CHECK ONE) _ _Consecutive to

Concurrent with the sentence

Set for ip count _ _ _ _ _ _ _ _ _ of this case.

Page

..5 ·of -12i_

235

CFN#2958845 BK 3311 PG 1779 PAGE 6 of 12

UCN: 432020CF001073C~AXMX

Case Number: 20001073CFAXMX

A$ to Other Counts

Consecutiye/Concurrent

As to Other Convictions

All Counts concurrent with each other.

_ _ It is further ordered that the composite term of all sentences imposed for the

counts specified in this order shall run (CHECK ONE) .

·

_ _Consecutive to

Concurrent with the sentence

_ _ _ any active sentence being served.

_ _ _ specific sentences: _ _ _ _ _ __ _ _ _ _ _ _ _ __

Page

_ft._ of ___id

236

CFN#2958845 BK 3311 PG 1780 PAGE 7 of 12

UCN: 432020CF001073CFAXMX

Case Number: 20001073CFAXMX

STATE OF FLORIDA

vs.

JOSEPH DEVON AIKEN

Defendant.

Other Provisions (continued)

In the Event the above sentence is to the Department of Corrections, the Sheriff of Martin

County, Florida is hereby ordered and directed to deliver the defendant to the Department of

Corrections ~t the facility designated by the department together with a copy of this jQdgrnent and

·

sentence and any other documents specified by Florida Statute. .

The defendant in open court was advised of the right to appeal from this sentence by filing

notice of appeal within 30 days from this date with the clerk of this court and the defendants right

to be assistance of counsel in taking the appeal at the expense of the State on showing of

indigency.

In imposing the above sentence? the court further recommends/orders:

DRIVERS LICENSE IS SUSPENDED FOR 6 MONTHS

ALL COSTS TO A CIVIL LIEN EXCEPT COST OF PROSECUTION

DONE and ORDERED at Martin County, Florida this 5th day of May, 2022.

~-

.

CIRCUIT JUGER0BERT MAK.EMSON

CERTIFICATE OF CLERK

I HEREBY CERTIFY~ and correct oopy of the foc;~9;ng ha~~hOO by US

Mail/Courthouse B o ~ o the Defense Counsel this ~ Y of

, 20M ·

arolyn Timmann, Clerk of the Court

7Jc

Page

__L_ of / t1\

237

CFN#2958845 BK 3311 PG 1781 PAGE 8 of 12

STATE OF FLORIDA

IN THE Circuit COURT OF THE Nineteenth JUDICIAL CIRCUIT

. IN AND FOR MARTIN COUNTY FLORIDA

STATE OF FLORIDA,

-vs-

Case Number: 2.u -

/o 7; C ~A

:J;icrn Dc..vo,J A: I KE-,J

Defendant.

Fingerprint Form

EINGEEPRINTS OF DEFENDANT

. 1. R. Thumb

2. R. Index

1. L. Thumb

2. L. Index

.•...

3. R. Middle

4, R. Rin~

5. R. Little

3. L.Middle

4 . .L. Ring

5. L. Little

Fingerprints taken by

~REBY CERTIFY that the above and foregoing are the fingerprints of the Defendant,

cJD..seph_'J) . .,'L'K&i .

,

and that they wer~_pla<;ed thereon by said Defendant in my presence in Open Court this

day of Wtl.A.(·

· , 20~.

Page

£3

of

238

/,l

CFN#2958845 BK 33Jl PG 1782 PAGE 9 of 12

...

..

RL -~.992(a) Criminal Punishment Code s i:~1heet

.

.

The Criminal Punishment Code Scoresheet Preparation Manual Is available at: http://www.dc.state.fl.us/pub/sen_cpcm/index.html

I. DATE OF SENTENCE

2. PREPARER'S NAME

MARCUS JOHNSON

3.COUNTY

MARTIN

4. SENTENCING JUDGE

BAUER

5. NAME (LAST, FIRST, Ml.I.)

6.DOB

1/9/1984

7.DC#

8.RACE

WHITE

9.GENDER

MALE

10. PRIMARY OFF. DATE

10/10/2020

11. PRIMARY DOCKET#

4320CF00l073

AIKEN, JOSEPH D.

I.

PRIMARY OFFENSE:

FELONY

DEGREE

Qualifier:

T R A F F ~ w ,.-tj,

- - ----- 893.135~1~

(Level - Points: 1=4, 2=10, 3=16, 4=22, 5=28, 6=36, 7=56, 8=74, 9=92, 10=116)

Prior capital felony doubles Primary Offense points

II.

DOCKET#

FEUMM DEGREE

POINTS

56

I. 56.0000

0

ADDITIONAL OFFENSE(S): Supplemental page attached

F.S.#

OFFENSE LEVEL

PLEA

TRIAL

OFFENSE

LEVEL

7

DESCRIPTION

F.S.#

12.

QUALIFY: A/S/C/R

POINTS TOTAL

COUNTS

DESCRIPTION

DESCRIPTION

DESCRIPTION

DESCRIPTION

(Level-Points: M=0.2, 1=0.7, 2=1.2, 3=2.4, 4=3.6, 5ai5.4, 6=18, 7=28, 8=37, 9=46, 10=58)

Prior capita! felony doubles Additional Offense points

III. VICTIM INJURY:

Number

2°• Degree Murder

240X

Death

120X

Severe

Moderate

40X

18X

Supplemental page points

0

11.

Total

Number

Total

-----

Slight

4X

Sex Penetration

BOX

40X

Sex Contact

---

Ill.

IV. PRIORRECORD: Supplemental page attached 181

DESCRIPTION

POINTS

NUMBER

TOTAL

FEUMM

DEGREE

5/MM

F.S.#

901.36(1)

OFFENSE

LEVEL

M

X

0.2

5/MM

322.34

M

DRIVE W/LIC. S/R/C/D-MI

5

X

0.2

1.0000

5/MM

893.147(1)

POSS.DRUG PARAPHERNA.-M

0.2

0.4000

RESIST.LEO/NO VIOL-MIS

2

4

X

843.02

M

M

X

0.2

0.8000

893.13(6)(A)

3

POSS.CONTROL.SUBS/OTHER

1

X

1.6

X

3.6

=

X

X

· 1.6

0.2

=

X

0.2

5/MM

3

QUALIFY:

A/S/C/R

-------

GIVE LEO FALSE NAME-MIS

COCAINE-SALE/MANUF/DELI

5

POSS.CONTROL.SUBS/OTHER

3

3

POSSES MARIJUANA-MISD

M

5/MM

CONTEMPT OF COURT-MISD

M

5/MM

900.04

(Level-Points: M=0.2, 1=0.5, 2=0.8, 3=1.6, 4=2.4, 5=3.6, 6=9, 7=14, 8=19, 9=23, 10=29)

2

893.13(1)(A)1

893.13(6)(A)

893.13(6)(8)

rs;6 HV · S- AVMZ~OZ

3

5

=

0.2000.

1.6000

3.6000

4.8000

1.0000

0.2000

Supplemental page points

12.6

IV. 26.2000

Page 1 Subtotal: 82.2000

. ]~!'. ;c'.) H!;J H ;W

*;~;H~1·nr~f ~~-Hl~Jif~3 -"N:!

2

Effective Date: For offenses conimitted under the Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions.

239

CFN#2958845 BK 3311 PG 1783 PAGE 10 of 12

~ N_AM_E-(LA

_ S

_T_,F-lR_S_T_,M

- 1.1. ) - - - --

.-

-•0

\

()

- - - - - --,--D-O_C_·_

KE_T_#_ _..:..__;, ,...J; . - - - - - - - - - - -- -~

4320CF001073

AIKEN, JOSEPH D.

V.

Page 1 Subtotal:

82.2000

Legal Status Violation = 4 Points

D Escape D Fleeing D Failure to Appear D Supersedeas bond D Incarceration D Pretrial intervention or diversion program

D Court imposed post prison release community supervision resulting in a conviction

V. _ _ _ __

VI. Community Sanction Violation before the court for sentencing

VI. _ _ _ __

D Probation D Community Control D Pretrial Intervention or diversion

D 6 points for any violation other than new felony conviction X --,--~.,-, each successive violation OR

D New felony conviction = 12 points x ____ each successive violation if new offense results In conviction

before or at same time as sentence for violation of probation OR

____ each successive violation·for a violent felony offender

of special concern when the violation is not based solely on failure to pay costs, fines, or restitution OR

D New felony conviction = 24 points X _ _ _ _ each successive violation for a vlo!ent felony offender of

. special concern if new offense results In a conviction before or at the same time for violation of probation

D 12 points x

VII. Firearm/Semi-Automatic or Machine Gun= 18 or 25 points

VIII. Prior Serious Felony= 30 points

Subtotal Sentence Points

X. Enhancements (onlv If primarv offense qualifies for enhancement)

Law Enf. Protect.

Drug Trafficker Motor Vehicle Theft Criminal Gang Offense

D x 1.5 D x2.0 D x2.5

x 1.5

0 X 1.5

x1 .5

Domestic Violence In the Presence of

Related Child

offenses committed on or after 03-12-07)

D x 1.5

Enhanced Subtotal Sentence Points

TOTAL SENTENCE POINTS

SENTENCE COMPUTATION

VII.

VIII.

82.2000

Adult-on-Minor Sex Offense

offenses committed on or after 10-1-14)

D x2.0

IX.

82.2000

If total sentence points are. less than or equal to 44, the lowest permissible sentence is any non-state prison sanction. If the total sentence points are

22 points or less, see Section 775.082(10), Florida Statutes, to determine if the court must sentence.the offender to a non-state prison sanction.

If total sentence points are greater than 44:

82.2000

total sentence points

minus 28 =

54.2000

40.650000

Lowest permissible prison sentence in months

X .75=

If total sentence points are 60 points or less than and court makes findings pursuant to both Florida Statutes 948.20 and 397.334(3), the court may

'olace the defendant into a treatment-based drua court oroaram.

The maximum sentence is up to the statutory maximum for the primary and any additional offenses as provided in s.775.082, F.S ., unless the

lowest permissible sentence under the code, exceeds the statutory maximum. Such sentences may be imposed concurrently or consecutively. If

the total sentence points are greater than or equal to 363, a life sentence may be imposed.

30

maximum sentence in vears

TOTAL SENTENCE IMPOSED

D Life

.~tate Prison

Time Served

CountyJail

D Community Control

D Probation

D Modified

Please check if sentenced as

I

habitual offender,

Years

/J. ,O

habitual violent offender,

Months

violent career offender,

Days

prison release reoffender,'

or ~andatory minimum applies.

D Mitigat~d Departure

Plea Bargain D Prison Diversion Program

Other _Reason

JUDGE'S SIGNATURE

I.

Effective Date: For offenses committed under th e Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions.

240

CFN#2958845 BK 331 I PG I 784 PAG E 11 of 12

I

NAME (LAST, FIRST, Ml. 1.)

AIKEN, JOSEPH D.

X. ADDITIONAL OFFENSE(S):

DOCKET#

-"i

lemental Criminal Punishment (;\_. _ 1 Scoresheet

FEUMM DEGREE

F.S.#

OFFENSE LEVEL

QUALIFY: A/S/C/R

COUNTS

POINTS TOTAL

DESCRIPTION

DESCRIPTION

DESCRIPTION

DESCRIPTION

DESCRIPTION

(Level - Points: M=0.2, 1=0.7, 2=1.2, 3=2.4, 4=3.6, 5=5.4, 6=18, 7=28, 8=37, 9=46, 10=58)

IV. PRIOR.RECORD:

FEUMM

DEGREE

3

3

F.S.#

812.131(2)(8)

827.03(1)(8-C)

OFFENSE

LEVEL

5

6

QUALIFY:

A/S/C/R

DESCRIPTION

SUDDEN SNATCH NO WEAPON

ABUSE CHILD

II.

TOTAL

POINTS

NUMBER

X

X

X

X

X

X

3.6

9

=

=

3.6000

9.0000

(Level - Points: M=0.2, 1=0.5, 2=0.8, 3=1.6, 4=2.4, 5=3.6, 6=9, 7=14, 8=19, 9=23, 10=29)

Reasons for Departure - Mitigating Circumstances

-----

IV.

12.6000

(reasons may be checked here or written on the scoresheet)

D Legitimate, uncoerced plea bargain.

D The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.

D The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially Impaired.

The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is

amenable to treatment.

D The need for payment of restitution to the victim outweighs the need for a prison sentence.

0 The victim was an initiator, willing participant, aggressor. or provoker of the incident.

0 The defendant acted under extreme duress or under the domination of another person.

D Before the identity of the defendant was determined, the victim was substantially compensated.

0 The defendant cooperated with the State to resolve the current offense or any other offense.

The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

D At the time of the offense the defendant was too young to appreciate the consequences of the offense.

D The defendant is to be sentenced as a youthful offender.

·

D The defendant Is amenable to the services of a post adjudicatory treatment-based drug court program and is otherwise qualified to participate in the program.

D The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.

Pursuant to 921.0026(3) the defendant's substance abuse or addiction does not justify a downward departure from the lowest permissible sentence, except for the provisions of s.

921 .0026(2)(m).

Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions.

241

CFN#2958845 BK 3311 PG 1785 PAGE 12 of 12

STATE OF FLORIDA

UNIFORM COMMITMENT TO CUSTODY

OF DEPARTMENT OF CORRECTIONS

of

The Circuit Court of the 19th Judicial Circuit, in and for Martin County, Florida, in the case

STATE OF FLORIDA

vs.

JOSEPH DEVON AIKEN

Defendant

Case No. 20001073CFAXMX

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA, TO THE

SHERIFF OF THE ABOVE-REFERENCED COUNTY AND THE DEPARTMENT OF

CORRECTIONS, GREETINGS:

The above named defendant has been duly charged, convicted, adjudicated guilty, and

sentenced for the offense(s) set forth in the attached certified copies of

Indictment(s)/Information(s), Original Judgment(s) Adjudicating Guilty and Sentencing

Order(s). In addition to the Original Judgment, if judicial supervision has been revoked

subsequent to the entry of the judgment adjudicating guilt, a certified copy of the order revoking

supervision (rather than a duplicative judgment adjudicating guilt) is also attached in support of

this commitment.

Now therefore, this is to command you, the Sheriff, to take and keep and, within a

reasonable time after receiving this commitment, deliver the defendant into the custody of the

Department of Corrections; and this is to command you, the Secretary of the Department of

Corrections, to keep and imprison the defendant for the term of the sentence. Herein fail not.

WITNESS the Clerk, a

5th day of May, 2022.

Page /

/Ji of /J..

242