Petition for Writ of Certiorari — Wisben Sanon, Petitioner v. Florida

Supreme Court briefDec 11, 2023

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IN THE SUPREME COURT OF THE UNITED STATES

WISBEN SANON, PETITIONER

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

WISBEN SANON,

Appellant,

STATE OF FLORIDA,

Appellee.

No. 4D22-713

[April 12, 2023]

Appeal from the Circuit Court of the Nineteenth Judicial Circuit, St.

Lucie County; Lawrence M. Mirman, Judge; L.T. Case No.

562017CF001914.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,

Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Appellant Wisben Sanon appeals his conviction for several sexual

assault crimes, raising two arguments on appeal. First, Sanon argues his

conviction by a six-person jury violated his rights under the Sixth

Amendment to the United States Constitution.

We have recently

addressed this issue and affirm without discussion. See Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022).

Second, Sanon contends the State made improper rebuttal closing

argument when it showed the jury a placard with the reasonable doubt

instruction juxtaposed with the phrase “motive plus opportunity is not

reasonable doubt.” The State explained this was a reference to Sanon’s

defense that he had been framed for the charged crimes and the jury

should find reasonable doubt attributable to the accusers’ motive and

opportunity to plant damaging evidence.

We review a trial court’s control of prosecutorial closing comments for

abuse of discretion. Narcisse v. State, 166 So. 3d 954, 956 (Fla. 4th DCA

2015). In exercising that discretion, trial courts will properly permit the

parties “wide latitude in closing argument to a jury.” Stephens v. State,

975 So. 2d 405, 421 (Fla. 2007).

As a response to Sanon’s primary defense, the State’s rebuttal closing

argument was well within that latitude. See State v. Compo, 651 So. 2d

127, 130 (Fla. 2d DCA 1995) (“Fundamental notions of fairness require[]

that the state be allowed to comment on . . . issues raised by the

defendant.”). Moreover, the State informed the jury that the objected-to

statement “is obviously not part of the instruction [on reasonable doubt].”

Upon further defense objection, the trial court clarified that the

prosecution was merely emphasizing what was and what was not in the

agreed-upon reasonable doubt jury instruction, with the court informing

the jury “what is and what isn’t reasonable doubt, ladies and gentlemen,

will ultimately be for you to decide.” The trial court’s comments, on top of

the State’s explanation, “remov[ed] any question of an improper taint on

the jury’s understanding of the burden of proof.” Thomas v. State, 726 So.

2d 369, 372 (Fla. 4th DCA 1999). We accordingly find no error.

Affirmed.

GROSS and CONNER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

POINT II

APPELLANT WAS ENTITLED TO A TWELVE-PERSON

JURY UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS AND HE DID NOT WAIVE THAT RIGHT

Appellant was convicted of felonies by a jury comprised of a

mere six people. T 212. He argues that the Sixth and Fourteenth

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

defendant is charged with a felony. The standard of review of

constitutional claims is de novo. See A.B. v. Florida Dept. of Children

& Family Services, 901 So. 2d 324, 326 (Fla. 3d DCA 2005).

Although the 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 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 Sixth

Amendment’s adoption,” id. at 1395.

Prior to 1970, subjecting appellant 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[.]” 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 U.S. 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, 349-350

(1898). 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 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 for several

centuries and carried impressive credentials traced by many to

Magna Carta,” such as the necessary inclusion of twelve members.

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

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);

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, 122-123 (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 leaves justice to the “commonsense judgment of a group of

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

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”).

“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.” 140 S.

Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected

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

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.’” 140 S. Ct. at 1400-01.

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 140 S. Ct. 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[] crosssection of the community”—“are in any meaningful sense less likely

to be achieved when the jury numbers six, than when it numbers

12.” Id. at 100. The Court theorized that “in practice the difference

between the 12-man and the six-man jury in terms of the cross35

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 233, (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.

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 24546

(Powell,

J.)

(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., Achieving Diversity on the Jury, supra, at 449, it

increases

“the

opportunity

for

meaningful

and

appropriate

representation” and helps ensure that juries “represent adequately

a cross-section of the community.” Ballew, 435 U.S. at 237. 2

In overruling Apodaca, Ramos rejected the “same fundamental

mode of analysis as that in Williams.” Ramos, 140 S. Ct. at 1436

(Alito, J., dissenting). If Apodaca relied on the reasoning of Williams,

and Apodaca has been overruled, where does that leave Williams?

As Judge Makar wrote: “It seems a small step from the demise of

the reasoning in Apodaca . . . as announced in Ramos to conclude

that the reasoning in Williams, upon which [Apodaca] relied, is also

in jeopardy.” Phillips v. State, 316 So. 3d 779, 788 (Fla. 1st DCA

2021), rev. denied, 2021 WL 3077438 (Fla. July 21, 2021), and cert.

Consider that in In the two years before Covid (2018 and

2019), there were 4649 non-capital (i.e., six person) felony jury

trials in Florida. http://trialstats.flcourts.org/ Under the Sixth

Amendment there should have been 55,788 jurors participating in

this important governmental function; instead there were 27,894

jurors.

denied sub nom. Phillips v. Florida, 211 L. Ed. 2d 406 (2021)

(Makar, J., concurring). 3

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

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

low

damage

awards

compared

the

average.”

Higginbotham et al., Better by the Dozen, supra, at 52.

Nothing can be read into the fact that the United States

Supreme Court denied certiorari in Phillips. “The significance of a

denial of a petition for certiorari ought no longer require discussion.

This Court has said again and again and again that such a denial

has no legal significance whatever bearing on the merits of the

claim.” Ramos, 206 L. Ed. 2d 583 n.56 (cleaned up).

Appellant 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.

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. 15 241 (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. 294. This was less

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” 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, 15-16. See also Shofner 266.

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

supremacy. Id. 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 for a

crime punishable by up to life imprisonment is unconstitutional

under the Sixth and Fourteenth Amendments of the United States

Constitution.

Finally, appellant 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.

In Johnson v. State, 994 So. 2d 960 (Fla. 2008), for example,

Johnson was charged with felony DUI, which is committing DUI

with three prior DUI convictions. Johnson, 994 So. 2d at 962. After

a jury found Johnson guilty of the base offense of DUI, the trial

court, by stipulation, became the factfinder as to the prior DUI

convictions. The trial court found that Johnson had the requisite

prior convictions and adjudicated him guilty of felony DUI.

Johnson appealed, and this Court affirmed, holding that

Johnson’s counsel’s stipulation that the trial court act as factfinder

was a valid waiver of Johnson’s Sixth Amendment right to have a

jury decide the prior-convictions element. Johnson v. State, 944 So.

2d 474, 476-77 (Fla. 4th DCA 2006).

Johnson sought review in the Florida Supreme Court. The

supreme

court

held

that

defense

counsel’s

stipulation

was

insufficient, that Johnson’s personal waiver of his jury-trial right

was required. Johnson, 994 So. 2d at 963. “Further, a defendant’s

silence does not establish a valid waiver of the right to a jury trial.”

Id. Thus, Johnson could raise this issue for the first time on appeal:

“[B]ecause a defendant’s silence clearly does not constitute a valid

waiver, it logically follows that defendants are not required to break

their silence (through either a request for a jury trial or an objection

to the bench trial) to preserve appellate review of this claim. Here,

just as Johnson’s silence was insufficient to waive his right to a jury

trial, his silence was insufficient to waive appellate review of this

claim.” Id. at 964 (citation omitted).

As in Johnson, appellant’s failure to raise this issue in the

lower court “does not constitute a waiver of appellate review on this

claim.” Id.

The Third District’s decision in Jimenez v. State, 167 So. 3d

497 (Fla. 3d DCA 2015), rev. denied, 192 So. 3d 38 (Fla. 2015),

supports appellant’s argument. Jimenez was tried by a jury of six

people when he should have been tried by a jury of twelve people

(he was charged with first-degree murder, a capital offense). This

violated section 913.10, Florida Statutes, and Florida Rule of

Criminal Procedure 3.270. This was not fundamental error, the

Third District said, because the “right to a jury of twelve persons is

not of constitutional dimension. Rather, it is a right provided by

state statute and in the corresponding Florida Rule of Criminal

Procedure.” Jimenez, 167 So. 3d at 499 (citations omitted). The

court continued: “Jimenez was not denied his constitutional right to

a trial by jury. Rather, he was provided with a trial by jury, but

consisting of six rather than twelve persons. While this failed to

comply with the statutory requirement, it was not fundamental

error such that it could have been raised for the first time on

appeal.” Id. (citations omitted).

Jimenez

was

issued

before

Ramos

effectively

overruled

Williams. Appellant’s argument is that a jury of twelve persons is of

“constitutional dimension.” Jimenez implies that if it is an issue of

“constitutional dimension,” then it may be raised for the first time

on appeal.

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.

the

United

States

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

MICHELLE R. MILLER, CLERK OF THE CIRCUIT COURT - SAINT LUCIE COUNTY

FILE# 5009922 OR BOOK 4791

PAGE 2878, Recorded 03/16/2022 09:56:46 AM

IN THE CIRCUIT/COUNTY COURT OF THE NINETEENTH JUDICIAL CIRCUIT

IN AND FOR ST LUCIE COUNTY, FLORIDA

Modified

Resentence

Amended

Corrected

Mitigated

Community Control Violator

Probation Violator

Case Number:

562017CF001914AXXXXX

STATE OF FLORIDA

- vs -

WISBEN SANON

sexual Predator

Sex Offender

Defendant

Minor Victim

Sentenced in Absentia

The Defendant, WISBEN SANON being personally before this Court represented by

Attorney CHARLES G WHITE, the Attorney of record, and the State represented by

ANASTASIA MARIE NORMAN, and having:

been tried and found guilty by Jury of the following crimeCs)

entered a plea of guilty to the following crime{s).

entered a plea of nolo contendere to the following crime(s)

Admitted Violation of Probation

Found Guilty of Violation of Probation

Admitted a Violation of Community Control

Found Guilty of Violation of Community Control

Count

Offense Statute

Number(s}

Crime

Level/

Degree

OBTS

Number

SEXUAL BATTERY ON A CHILD - FAMILIAL OR

CUSTODIAL AUTHORITY

794.011(8B}

F-1

5601230357

LEWD OR LASCIVIOUS MOLESTATION- OFFENDER

OVER 18, VICTIM 12 TO 16

B00.04{5C2}

F-2

5601230985

SEXUAL BATTERY ON A CHILD - FAMILIAL OR

794.011(8B)

F-1

5601230985

CUSTODIAL AUTHORITY

Page 1 of2

St. Lucie County File Date: 03/15/2022 03:48 PM

622

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2879

and no cause being shown why the defendant should not be adjudicated guilty. IT IS ORDERED THAT

the defendant is hereby ADJUDICATED GUILTY of the above c:rime(s), : AS TO COUNT(sl 2. 3. 7

and being a qualified offender pursuant to Florida Statute 943.325 - defendant shall be required to submit DNA

samples as required by law

and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD .

Page 2 of 2

St. Lucie County File Date: 03/15/2022 03:48 PM

623

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2880

17CF001914 A

The Defendant in open Court was advised of the right to appeal fro

within 30 days from this date with the Clerk of this Court and the Defend~_nt's

taking the appeal at the expense of the State on showing of indigency.

Circuit Judge

Sentence by filing notice of appeal

t to the assistance of counsel in

NCE MIRMAN

FIN~ERPRINTS OF .Dl;FENDANT

1. Right Thumb

2. Right Index

6. Left Thumb

3. Right Middle

4. Right Ring

5. Right Little ·

8 . Left Middle

9. Left Ring

1 o. Left Little

t'J_. ."""'

. ___

L J:?_l_v_rL_._·__~_1_0_1_l--_____

Fingerprints taken by: _ _ _ _

Title

Name

I HEAR BY CERTIFY that the above and forgoing fingerprints are the fingerprints of the Defendant _ _ _ _ __

_W_IS_B_E_N_S_A_N_O_N_ _ _ _ _ _ _ _ _ _ _ _ _ _ and that they were placed thereon by said Defendant in my

presence in open Court this date.

Thursday, March 10, 2022

DONE AND ORDERED in Open Court at St. Lucie County,

Nunc Pro Tune To:

LAWRENCE MIRMAN

St. Lucie County File Date: 03/15/2022 03:48 PM

624

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2881

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Modified

Amended

Mitigated

Corrected

Defendant

Case Number

OBTS Number

562017CF001914AXXXXX

5601230357

WISBEN SANON

(As to Count 2 )

The Defendant, being personally before this Court, accompanied by the Defendant's Attorney of record PUBLIC

DEFENDER UNKNOWN and having been adjudicated guilty, 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 Defense should not be sentenced as

provided by law, and no cause being shown

__ and the Court having on _ _ deferred imposition of sentence until this date.

__ and the Court having previously entered a judgment in this case on _ _ now resentence the Defendant.

__ and the Court having placed the Defendant on ________ and having subsequently

revoked the Defendant's _ _ _ _ _ _ _ _ __

It Is The Sentence Of Court that:

The defendant pay a fine of _ _ _ pursuant to section 775.083, Florida Statutes, plus _ _ _ as the 5% surcharge

required on 938.04, Florida Statutes.

X The Defendant is hereby committed to the custody of the Department of Corrections.

The Defendant is hereby committed to the custody of the Sheriff of St. Lucie County Florida.

The Defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

To Be Imprisoned (check one; unmarked sections are inapplicable.):

X For a term of Natural Life.

For a term of Natural Life with a 25 year mandatory minimum

For a term of

The SENTENCE IS SUSPENDED for a period of _ _ _ subject to conditions set forth in this Order.

If 'split' sentence complete the

appropriate Paragraph.

__ Followed by a period of _ _ on Community Control under the supervision of the

Department of Corrections according to the terms and conditions of supervision as set forth

in a separate order.

__ Followed by a period of _ _ probation under the supervision of the Department

of Corrections according to the terms and conditions of supervision as set forth in a

separate order.

__ However, after serving a period of imprisonment in PRISON, the balance of the

sentence will be suspended and the Defendant will be on Probation/Community Control

under the supervision of the Department of Corrections according to the terms and

conditions of Probation/Community Control as set forth in a separate order.

In the event the Defendant is ordered to serve additional, split sentences, all incarceration portions shall be satisfied

before the Defendant begins service of the supervision terms.

Page 1 of7

St. Lucie County File Date: 03/15/2022 03:48 PM

625

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2882

5620l 7CF00I914AXXXXX

SPECIAL PROVISIONS

(As to Count 2)

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

Mandatory/ Minimum Provisions:

Firearm

It is further ordered that the _ _ _ minimum imprisonment provisions of section 775.087, Florida

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

Drug Trafficking

It is further ordered that the___ minimum imprisonment provisions of section 893.135, Florida Statutes, is

hereby imposed for the sentence specified in this court, and that the Defendant pay a fine of$__, pursuant to section

893.135 , Florida Statutes, plus$_ as a 5% surcharge.

Law Enforcement

It is further ordered that the _ _ _ minimum mandatory imprisonment provision of section 784 .07, Florida

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

Controlled Substance

Within 1,000 Feet ofSchool

It is further ordered that the 3 year minimum imprisonment provision of section 893. 13(1 )(c), Florida

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

Habitual 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. The requisite findings

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

Habitual Violent Felony

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

extended term in accordance with the provisions of sections 775.084(4)(b), Florida Statutes. A minimum

term of _ _ _ year(s) must be served prior to release. The requisite findings of the Court are set forth

in a separate order as stated on the record in open court.

Violent Career Criminal

The Defendant is adjudicated a violent career criminal and has been sentenced to an extended term in

accordance with the provisions of section 775.084(4)(d), Florida Statutes, A minimum of _ _ _

prior to release. The requisite findings of the Court as set forth in a separate order or stated on

the record in open court. (For crimes committed on or after May 24, 1997.)

must be served

Capital Offense

It is further that the Defendant shall serve no less than 25 years in accordance with provisions of section

775.082(1 ), Florida Statutes. (For first degree murder committed prior to May 25, 1994, and for any other capital

felony committed prior to October I, 1995.)

Prison Releasee

Defendant is adjudged a prison releasee reoffender in accordance with the provision of section 775.082(9), FL Statutes.

Sexual Predator

Defendant is adjudged a sexual predator in accordance with provision of section 775.21, Florida Statutes.

Other Provisions:

Jail Credit

Credit for Time Served

in Resentencing After

Violation of Probation or

Community Control

It is further ordered that the Ddendant shall be allowed a total of 1,702 DAY(S)

as credit for time incarcerated before imposition of this sentence.

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 compute and apply credit for time served and unforfeited gain time

previously awarded on case/count _ _ _ _ (Offenses committed before October I , 1989)

It is further ordered that the Defendant be allowed _ _ days time served between date or arrest as a violator

following release from prison to the date of resente ncing. The Department of Correction shall apply original jail time

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

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

The Court deems the unforfeited gain time previously awarded on the above case/count forfeited

unde r section 948 .06(6), Florida Statutes.

The Court allows unforfeited gain time previously awarded on the above case/count. (Gain time may be subj ect

to forfeiture by the Department of Corrections under section 944 .28(1 )), Florida Statutes.

It is further ordered that the Defendant be allowed

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 compute and apply credit for time served only pursuant to section 921 .0017 , Florida Statutes, on case/ count .

(Offenses committed on or after January I, 1994)

Consecutive/ Concurrent

It is further ordered that the sentence imposed for this count shall run _ _ with the sentence set forth in count _ _

- - of this case.

Page 2 of 7

St. Lucie County File Date: 03/15/2022 03:48 PM

626

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2883

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Modified

Amended

Mitigated

Corrected

Defendant

Case Number

OBTS Number

562017CF001914AXXXXX

5601230985

WISBEN SANON

(As to Count 3)

The Defendant, being personally before this Court, accompanied by the Defendant's Attorney ofrecord PUBLIC

DEFENDER UNKNOWN and having been adjudicated guilty, 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 Defense should not be sentenced as

provided by law, and no cause being shown

__ and the Court having on _ _ deferred imposition of sentence until this date.

and the Court having previously entered a judgment in this case on _ _ now resentence the Defendant.

__ and the Court having placed the Defendant on _ _ _ _ _ _ _ _ and having subsequently

revoked the Defendant's _ _ _ _ _ _ _ _ __

It Is The Sentence Of Court that:

The defendant pay a fine of _ _ _ pursuant to section 775.083, Florida Statutes, plus _ _ _ as the 5% surcharge

required on 938.04, Florida Statutes.

X The Defendant is hereby committed to the custody of the Department of Corrections.

The Defendant is hereby committed to the custody of the Sheriff of St. Lucie County Florida.

The Defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

To Be Imprisoned (check one; unmarked sections are inapplicable.):

For a term of Natural Life.

For a term of Natural Life with a 25 year mandatory minimum

X For a term of 15.00 YEAR(S)

The SENTENCE IS SUSPENDED for a period of _ _ _ subject to conditions set forth in this Order.

If'split' sentence complete the

appropriate Paragraph.

__ Followed by a period of _ _ on Community Control under the supervision of the

Department of Corrections according to the terms and conditions of supervision as set forth

in a separate order.

__ Followed by a period of _ _ probation under the supervision of the Department

of Corrections according to the terms and conditions of supervision as set forth in a

separate order.

__ However, after serving a period of imprisonment in PRISON, the balance of the

sentence will be suspended and the Defendant will be on Probation/Community Control

under the supervision of the Department of Corrections according to the terms and

conditions of Probation/Community Control as set forth in a separate order.

In the event the Defendant is ordered to serve additional, split sentences, all incarceration portions shall be satisfied

before the Defendant begins service of the supervision terms.

Page 3 of7

St. Lucie County File Date: 03/15/2022 03:48 PM

627

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2884

562017CF00I9l4AXXXXX

SPECIAL PROVISIONS

(As to Count 3)

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

Mandatory/ Minimum Provisions:

Firearm

It is further ordered that the _ _ _ minimum imprisonment provisions of section 775 .087, l'lorida

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

Drug Trafficking

It is further ordered that the _ _ _ minimum imprisonment provisions of section 89 3.135, l'lorida Statutes, is

hereby imposed for the sentence specified in this court, and that the Defendant pay a fine of$__, pursuant 10 section

893. 135, Florida Statutes, plus$_ as a 5% surcharge.

law Enforcement

It is furth er ordered that the _ _ _ minimum mandatory imprisonm ent provision of section 784 .07, Florida

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

Controlled Substan ce

Within 1,000 Feet of School

It is funhe r orde red that the 3 year minimum imprisonment provision of section 893 . 13(1 )( c), Florida

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

Habitual Felony Of.fender

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

term in accordance with the prov isions of section 775.084(4)(a), Florida Statutes. The requisite findings

by the Coun are set fonh in a separate order or stated on the record in open coun.

Habitual Violent Felony

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

extended term in accordance with the provisions of sections 775.084(4)(b), Florida Statutes. A minimum

term of _ _ _ _ year(s) must be served prior to release. The requisite findings of the Court are set forth

in a separate order as stated on the record in open court.

Violent Career Criminal

The Defendant is adjudicated a violent career criminal and has been sentenced to an extended term in

accordance with the provisions of section 775.084(4)(d), Florida Statutes, A minimum of

prior to release. The requisite findings of the Court as set forth in a separate order or stated _o_n- the record in open court. (For crimes committed on or after May 24, 1997 .)

must be served

Capital Offense

It is further that the Defendant shall serve no less than 25 years in accordance with provisions of section

77 5.082( I), Florida Statutes. (For first degree murder committed prior to May 25, 1994, and for any other capital

felony committed prior to October I, 1995.)

Prison Releasee

Defendant is adjudged a prison releasee reoffender in accordance with the provision of section 775.082(9), FL Statutes.

Sexual Predator

Defendant is adjudged a sexual predator in accordance with provision of section 775.21, Florida Statutes.

Other Provisions:

Jail Credit

It is further ordered that the Defendant shall be allowed a total of O dsays as credit for time incarcerated

before imposition of this sentence.

Credit for Time Served

in Resentencing After

Violation of Probation or

Community Conrrol

It is funher 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 compute and apply credit for time served and unforfeited gain time

previously awarded on case/count _ _ _ _ (Offenses committed before October I, 1989)

It is further ordered that the Defendant be allowed _ _ days time served between date or arrest as a violator

following release from prison to the date ofresentencing. The Department of Correction shall apply original jail time

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

(Offenses committed between October I, 1989, and December 3 I, 1993)

The Court deems the unforfeited gain time previously awarded on the above case/count forfeited

under section 948.06(6), Florida Statutes.

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 )), Florida Statutes .

It is further ordered that the Defendant be allowed

time served between date of a rrest as a violator following

release from prison to the date of resentencing. The Department of Corrections shall apply original jail time cred it and

shall compute and apply credit for time served only pursuant to section 921 .0017, Florida Statutes, on case/ count .

(Offenses committed on or after January I, 1994)

Conseclllivel Co ncurrent

It is further ordered that the sentence imposed for this count shall run CONSECUTIVE with the sentence set

- - forth in count 2 of this case.

Page 4 of7

St. Lucie County File Date: 03/15/2022 03:48 PM

628

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2885

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resentenced

Modified

Amended

Mitigated

Corrected

Defendant

Case Number

562017CF001914AXXXXX

OBTS Number

5601230985

WISBEN SANON

(As to Count 7)

The Defendant, being personally before this Court, accompanied by the Defendant's Attorney ofrecord PUBLIC

DEFENDER UNKNOWN and having been adjudicated guilty, 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 Defense should not be sentenced as

provided by law, and no cause being shown

and the Court having on _ _ deferred imposition of sentence until this date.

and the Court having previously entered a judgment in this case on _ _ now resentence the Defendant.

and the Court having placed the Defendant on _ _ _ _ _ _ _ and having subsequently

revoked the Defendant's _ _ _ _ _ _ _ _ __

It Is The Sentence Of Court that:

The defendant pay a fine of _ _ _ pursuant to section 775.083, Florida Statutes, plus _ _ _ as the 5% surcharge

required on 938.04, Florida Statutes.

X The Defendant is hereby committed to the custody of the Department of Corrections.

The Defendant is hereby committed to the custody of the Sheriff of St. Lucie County Florida.

The Defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

To Be Imprisoned (check one; unmarked sections are inapplicable.):

X For a term of Natural Life.

For a term of Natural Life with a 25 year mandatory minimum

For a term of

The SENTENCE IS SUSPENDED for a period of _ _ _ subject to conditions set forth in this Order.

If 'split' sentence complete the

appropriate Paragraph.

Followed by a period of _ _ on Community Control under the supervision of the

Department of Corrections according to the terms and conditions of supervision as set forth

in a separate order.

Followed by a period of _ _ probation under the supervision of the Department

of Corrections according to the terms and conditions of supervision as set forth in a

separate order.

However, after serving a period of imprisonment in PRISON, the balance of the

sentence will be suspended and the Defendant will be on Probation/Community Control

under the supervision of the Department of Corrections according to the terms and

conditions of Probation/Community Control as set forth in a separate order.

In the event the Defendant is ordered to serve additional, split sentences, all incarceration portions shall be satisfied

before the Defendant begins service of the supervision terms.

Page 5 of 7

St. Lucie County File Date: 03/15/2022 03:48 PM

629

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2886

562017CF00l914AXXXXX

SPECIAL PROVISIONS

(As to Count 7)

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

Mandatory/ Minimum Provisions:

Firearm

ll is further ordered that the _ _ _ minimum imprisonment provisions of section 775 .087, Florida

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

Drng Trafficking

It is further ordered that the _ _ _ minimum imprisonment provisions of section 893 .135 , Florida Statutes, is

hereby imposed for the sentence specified in this court, and that the Defendant pay a fine of$_ , pursua,,t to section

893 . J 35, Florida Statutes, plus$_ as a 5% surcharge.

Law Enfarcement

It is further ordered that the _ _ _ minimum mandatory imprisonment provision of section 784.07, Florida

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

Controlled Substance

Within 1,000 Feet ofSchool

It is further ordered that the 3 year minimum imprisonm ent provision of section 893 .13(1 ){c), Florida

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

Habitual Felony Offender

The Defendant is adjudicated a habitual fe lony olTender and has been sentenced to an extended

term in accordance with the provisions of section 775 .084(4)(a), Florida Statutes. The requisite findings

by the Court are set forth in a separate ord er or stated on the record in open court.

Habitual Violent Felony

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

extended term in accordance with the provisions of sections 775.084(4)(b), Florida Statutes. A minimum

term of _ _ _ year(s) must be served prior to release. The requisite findings of the Court are set forth

in a separate order as stated on the record in open court.

Violent Career Criminal

The Defendant is adjudicated a violent career criminal and has been sentenced to an extended term in

accordance with the provisions of section 775 .084(4)(d). Florida Statutes, A minimum of _ _ _

prior to release. The requisite findings of the Court as set forth in a separate order or stated on

the record in open court. (For crimes committed on or after May 24, 1997 .)

must be served

It is further that the Defendant shall serve no less than 25 years in accordance with provisions of section

Capital Offense

775.082(1), Florida Statutes. (For first degree murder commiaed prior to May 25, 1994, and for any other capital

felony com milled prior to October I, 1995.)

Prison Releasee

Defendant is adjudged a prison releasee reoffender in accordance with the provision of section 775 .082(9), FL Statutes.

Sexual Predator

Defendant is adjudged a sexual predator in accordance with provision of section 775.21 , Florida Statutes.

Other Provisions:

Jail Credit

Credit for Time Served

in Resentencing Ajier

Violation of Probation or

Community Control

x..

It is further ordered that the Defendant shall be allowed a total ofO days as credit for time incarcerated before

imposition of this sentence.

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 ofresentencing. The Department of Corrections

shall 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 I , 1989)

It is further ordered that the Defendant be allowed _ _ days time served between date or arrest as a violator

following release from prison to the date of resentencing. The Department of Correction shall apply original jail time

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

(Offenses committed between October I, 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), Florida Statutes.

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 )). Florida Statutes .

It is further ordered that the Defendant be al lowed _ _ 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 compute and apply credit for time served only pursuant to section 921.0017, Florida Statutes, on case/ count.

(OITenses com milled on or after January I, 1994)

Consec11th-el Concurrent

It is further ordered that the sentence imposed for this count shall run CONSECUTIVE with the sentence set

- - forth in count 2 of this case.

Page 6 of 7

St. Lucie County File Date: 03/15/2022 03:48 PM

630

WISBEN SANON vs. STATE OF FLORIDA

LT. CASE NO: 2017CF001914 A

HT. CASE NO: 22-0713

OR BOOK

4791

PAGE

2887

Violation of Probation, Previously Adjudged Guilty

Violation of Community Control, Previously Adjudged Guilty

Resenlenced

Modified

Amended

Mitigated

Corrected

Case Number: 562017CF001914AXXXXX

Defendant: WISBEN SANON

Other provisions, continued:

Consecutive/Concurrent

To Other Convictions

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

in this order will run

(check one) [_] Consecutive To LJ Concurrent To

Concurrent with the following:

(check one)

[_] any active sentence being served.

[_] specific sentences:

In the event the above sentence is to the Department of Corrections, the Sheriff of St. Lucie County, Florida, is hereby

ordered and directed to deliver the defendant to the Department of Corrections and the facility designated by the

department together with a copy of this Judgment 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 Defendant's right to the assistance of counsel in taking the appeal

at the expense of the state upon a showing of indigency.

In imposing the above sentence, the Court further recommends/ orders

DONE AND ORDERED in Open Court at St. Lucie County, Florida, on

Nunc Pro Tune to:

Page 7 of 7

St. Lucie County File Date: 03/15/2022 03:48 PM

631

Supreme Court of Florida

TUESDAY, JUNE 13, 2023

Wisben Sanon,

Petitioner(s)

SC2023-0559

Lower Tribunal No(s).:

4D22-0713;

562017CF001914AXXXXX

State of Florida,

Respondent(s)

Petitioner shall show cause on or before June 28, 2023, why

in light of this Court’s decision to deny review in Guzman v. State,

No. SC2022-1597, this Court should not decline to accept

jurisdiction in this case. Respondent may file a reply on or before

July 10, 2023.

A True Copy

Test:

SC2023-0559 6/13/2023

Served:

PAUL EDWARD PETILLO

ANESHA WORTHY

Filing # 176294401 E-Filed 06/28/2023 09:39:22 AM

IN THE SUPREME COURT OF FLORIDA

WISBEN SANON,

Petitioner,

CASE NO.: SC23-0559

vs.

STATE OF FLORIDA,

Respondent

PETITIONER’S RESPONSE TO SHOW CAUSE ORDER

Petitioner responds to this Court’s order to show cause as

follows:

Petitioner sought review of the Fourth District’s decision

pursuant to Jollie v. State, 405 So. 2d 418 (Fla. 1981), and its citation

to Guzman v. State, SC22-1597, which was pending review in this

Court. He also sought review on the ground that the decision

“expressly construes a provision of the state or federal constitution.”

Art. V, § 3(b)(3), Fla. Const. Because this Court denied review of

Guzman, this Court no longer has jurisdiction pursuant to Jollie.

However, this Court could still exercise its discretion to accept review

on Petitioner’s other asserted basis, and notwithstanding that this

Court denied review of Guzman.

Respectfully submitted,

CAREY HAUGHWOUT

Public Defender, 15th Judicial Circuit

/s/ PAUL EDWARD PETILLO

Paul Edward Petillo

Assistant Public Defender

15th Judicial Circuit of Florida

Criminal Justice Building

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600

Florida Bar No.: 508438

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this response has been furnished to

Anesha Worthy, Assistant Attorney General, 1515 N. Flagler Dr.,

Suite

900,

West

Palm

Beach,

33401

e-service

CrimAppWPB@MyFloridaLegal.com; and electronically filed with this

court on this 28th day of June, 2023.

/s/ Paul E. Petillo

Of Counsel

Filing # 176333008 E-Filed 06/28/2023 11:43:27 AM

IN THE SUPREME COURT OF THE STATE OF FLORIDA

WISBEN SANON,

)

Petitioner,

)

STATE OF FLORIDA,

)

Respondent.

)

____________________________________)

Case No.: SC23-0559

Lower Tribunal Case Nos.:

4D22-0713

2017CF001914A

RESPONDENT’S REPLY TO

PETITIONER’S RESPONSE TO ORDER TO SHOW CAUSE

Petitioner sought review of the Fourth District’s decision in his case

alleging that this Court had conflict jurisdiction pursuant to Jollie v.

State, 405 So. 2d 418 (Fla. 1981), because it issued an opinion affirming

the six-person jury in his case with a citation to the “pending” case of

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022). He also alleged that

this Court had jurisdiction to review the Fourth District’s decision

pursuant to article V, section 3(b)(3) of the Florida Constitution because

it expressly construed a provision of the state or federal constitution.

This Court denied review of Guzman and issued an order requiring

Petitioner to show cause why this Court should not decline to accept

jurisdiction in this case in light of its decision to deny review in Guzman.

Petitioner filed a response conceding that this Court no longer has

jurisdiction to review the decision in his case pursuant to Jollie.

However, Petitioner argues that jurisdiction still exists because the

Fourth District’s decision expressly construed a provision of the state or

federal constitution. The face of the opinion conclusively refutes this

claim though.

In the decision, the Fourth District affirmed Petitioner’s challenge to

the six-person jury without discussing, interpreting, or construing the

Sixth Amendment and without any pronouncements on the numerical

composition of a jury. In fact, the Fourth District expressly stated that it

was affirming the issue “without discussion.”

Although the Fourth

District cited Guzman, which rejected a constitutional challenge to sixperson juries, there is nothing within the four corners of the opinion

before this Court that did the same.

As such, there is no express

constitutional construction within the opinion and this precludes

jurisdiction pursuant to this provision of article V, section 3(b)(3), Florida

Constitution. Therefore, in light of this Court’s decision to deny review in

Guzman, this Court should decline to accept jurisdiction in this case

because there is no other jurisdictional basis for review.

Respectfully submitted,

ASHLEY MOODY

Attorney General

Tallahassee, Florida

CELIA TERENZIO

Senior Assistant Attorney General

Bureau Chief, West Palm Beach

Florida Bar No. 656879

/s/ Anesha Worthy

ANESHA WORTHY

Assistant Attorney General

Florida Bar No. 60113

1515 North Flagler Drive

Suite 900

West Palm Beach, FL 33401-3432

Telephone: (561) 837-5016

Facsimile: (561) 837-5108

anesha.worthy@myfloridalegal.com

crimappwpb@myfloridalegal.com

Counsel for Respondent

CERTIFICATE OF SERVICE

I certify that the foregoing document has been electronically filed

with this Court and furnished to Paul Edward Petillo, Assistant Public

Defender, Office of the Public Defender, 15th Judicial Circuit, 421 Third

Street, West Palm Beach, FL 33401, via email at appeals@pd15.state.fl.us

on this 28th day of June, 2023.

/s/ Anesha Worthy

ANESHA WORTHY

Assistant Attorney General

Supreme Court of Florida

TUESDAY, NOVEMBER 14, 2023

Wisben Sanon,

Petitioner(s)

SC2023-0559

Lower Tribunal No(s).:

4D22-0713;

562017CF001914AXXXXX

State of Florida,

Respondent(s)

Upon review of the response to this Court’s order to show

cause dated June 13, 2023, and the reply, the Court has

determined that it should decline to accept jurisdiction in this case.

See Guzman v. State, No. SC2022-1597 (Fla. order entered June 6,

2023). The petition for discretionary review is, therefore, denied.

No motion for rehearing will be entertained by the Court. See

Fla. R. App. P. 9.330(d)(2).

MUÑIZ, C.J., and CANADY, LABARGA, FRANCIS, and SASSO, JJ.,

concur.

A True Copy

Test:

SC2023-0559 11/14/2023

CASE NO.: SC2023-0559

Page Two

Served:

4DCA CLERK

ST. LUCIE CLERK

HON. LAWRENCE MICHAEL MIRMAN

PAUL EDWARD PETILLO

ANESHA WORTHY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.