Petition for Writ of Certiorari — Freddie Quinn, Petitioner v. Florida
Supreme Court briefJan 12, 2024
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IN THE SUPREME COURT OF THE UNITED STATES
FREDDIE QUINN, 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
FREDDIE QUINN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2022-3362
[November 30, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Daliah H. Weiss, Judge; L.T. Case No. 2021CF005828AMB.
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.
PER CURIAM.
Affirmed.
KLINGENSMITH, C.J., FORST and KUNTZ, JJ., concur.
*
*
*
Not final until disposition of timely filed motion for rehearing.
Filing # 187404314 E-Filed 12/05/2023 03:21:16 PM
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FREDDIE QUINN,
Appellant,
CASE NO.: 4D22-3362
v.
STATE OF FLORIDA,
Appellee.
/
MOTION FOR REHEARING AND MOTION TO CERTIFY A
QUESTION OF GREAT PUBLIC IMPORTANCE
Appellant Freddie Quinn, through counsel, moves for rehearing
and to certify a question of great public importance. These are the
grounds:
This Court affirmed appellant’s conviction and sentence without
written opinion (“Per Curiam. Affirmed.”). The Florida Supreme Court
has no jurisdiction to review this decision. Jenkins v. State, 385 So.
2d 1356, 1359 (Fla. 1980). Ordinarily, this opinion would be final and
appellant could seek review directly in the United States Supreme
Court. See Hobbie v. Unemployment Appeals Commission of Florida,
480 U.S. 136, 139 n.4 (1987) (acknowledging that “[u]nder Florida
law, a per curiam affirmance issued without opinion cannot be
1
appealed to the State Supreme Court” and therefore petitioner
“sought review directly in this Court.”).
But the State has argued in five pending cases in the United
States Supreme Court that the petitioners’ failure to move to certify
a question of great public importance meant that they did not pursue
every available avenue of review in the Florida Supreme Court and
therefore the United States Supreme Court has no jurisdiction. See
Jackson v. Florida, No. 23-5570; Crane v. Florida, No. 23-5455;
Morton v. Florida, No. 23-5579; Sposato v. Florida, No. 23-5575;
Arrellano-Ramirez v. Florida, No. 23-5567. Accordingly, appellant
moves for rehearing and to certify a question of great public
importance.
Although appellant asked this Court to certify a question of
great public importance in the reply brief, the State had no ability to
address that request. It now has that opportunity, should it wish to
address this motion.
Whether the Sixth Amendment requires a twelve-person jury
because that is what “trial by an impartial jury” meant at the Sixth
Amendment’s adoption is a question of great public importance.
2
Therefore, this Court should grant rehearing and certify this question
as one of great public importance:
DOES THE SIXTH AMENDMENT REQUIRE A TWELVEPERSON JURY IN ALL FELONY CASES?
WHEREFORE, appellant respectfully moves this Court for
rehearing and to certify a question of great public importance.
Respectfully submitted
CAREY HAUGHWOUT
Public Defender, 15th Judicial Circuit
/s/ PAUL EDWARD PETILLO
Paul Edward Petillo
Assistant Public Defender
15th Judicial Circuit of Florida
421 Third Street
West Palm Beach, Florida 33401
(561) 355-7600
Florida Bar No. 508438
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this motion has been furnished to
Anesha Worthy, Assistant Attorney General, 1515 N. Flagler Dr.,
Suite
900,
West
Palm
Beach,
FL
33401
by
e-service
at
CrimAppWPB@MyFloridaLegal.com; and electronically filed with this
court on this 5th day of December, 2023.
/s/ PAUL EDWARD PETILLO
Paul Edward Petillo
Assistant Public Defender
4
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401
January 4, 2024
FREDDIE QUINN,
Appellant(s)
v.
CASE NO. - 4D2022-3362
L.T. No. - 502021CF005828
STATE OF FLORIDA,
Appellee(s).
BY ORDER OF THE COURT:
ORDERED that Appellant's December 05, 2023 motion for rehearing and certification is
denied.
Served:
Attorney General-W.P.B.
Paul Edward Petillo
Palm Beach Public Defender
Anesha Worthy
KR
I HEREBY CERTIFY that the foregoing is a true copy of the court’s order.
4D2022-3362 January 4, 2024
LONN WEISSBLUM, Clerk
Fourth District Court of Appeal
4D2022-3362 January 4, 2024
Filing # 160232829 E-Filed 10/29/2022 08:45:01 AM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION “S”
STATE OF FLORIDA,
CASE NO. 21CF005828AMB
vs.
Freddie Quinn,
Defendant.
____________________________/
DEFENDANT’S OBJECTION TO A SIX-PERSON JURY
AND MOTION FOR A TWELVE-PERSON JURY
Freddie Quinn, through counsel, objects to a six-person jury, and he moves for a twelveperson jury. He argues that the Sixth and Fourteenth Amendments guarantee the right to a
twelve-person jury when the defendant is charged with a felony. Specifically, the State amended
his information to two counts that are now punishable by life (PBL).
The defendant recognizes that the state constitution provides that the “qualifications and
the number of jurors, not fewer than six, shall be fixed by law,” see art. I, § 22, Fla. Const.; that
section 913.10, Florida Statutes, provides for six jurors except in capital cases (see also Fla. R.
Crim. P. 3.270); and that the Supreme Court held in Williams v. Florida, 399 U.S. 78, 86 (1970),
that juries as small as six were constitutionally permissible. However, as explained below,
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. And a party that seeks reversal of current precedent must preserve that issue like any other.
See Espinosa v. State, 626 So. 2d 165, 167 (Fla. 1993) (holding that issue was waived
notwithstanding there was adverse authority that foreclosed it); Beltran-Lopez v. State, 626 So.
000117
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 10/29/2022 08:45:01 AM
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 2
2d 163, 164 (Fla. 1993) (same); see, e.g., Hollingsworth v. State, 293 So. 3d 1049, 1051 (Fla. 4th
DCA 2020), rev. denied, 2020 WL 5902598 (Fla. Oct. 5, 2020). Therefore, the defendant objects
to a six-person jury and moves for a twelve-person jury on the following grounds.
Prior to 1970, subjecting a defendant charged with a felony to a trial with only six jurors
would indisputably violate his or her Sixth Amendment rights. As the Ramos Court observed,
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, state courts interpreted it to require a twelveperson 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
000118
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 3
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, 151-52 (1968).
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, 122-23 (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 “community participation and [with] shared responsibility.”
Id. at 100-01. According to the Williams Court, both “currently available evidence [and] theory”
000119
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 4
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 1401-02.
That reasoning undermines Williams as well. Ramos rejected the same kind of “costbenefit 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
000120
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 5
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.” Id. at 100. The Court theorized
that “in practice the difference between the 12-man and the six-man jury in terms of the crosssection 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 245-46 (Powell, J.) (agreeing
that five-member juries are unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).
000121
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 6
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.
Other important considerations also weigh in favor of the twelve-member jury. For
instance, studies indicate that twelve-member 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., Better by the Dozen, supra, at 52.
000122
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 7
The origins of Florida’s six-person juries are disturbing and further support reversal of
existing precedent. The 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
000123
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 8
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 non-unanimity 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 felony criminal trial is unconstitutional under
the Sixth and Fourteenth Amendments of the United States Constitution.
000124
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 9
Respectfully submitted,
CAREY HAUGHWOUT
Public Defender, 15th Judicial Circuit
421 3rd Street
West Palm Beach, FL 33401
Telephone: (561) 355-7500
_________________________________
Tiffany Benson
Assistant Public Defender
Fla. Bar No. 0111651
000125
State v. Freddie Quinn
Case No. 21CF005828AMB
Motion
Page 10
Certificate of Service
I HEREBY CERTIFY that a true and correct copy hereof has been served to Kristen
Grimes, Assistant State Attorney, Division “S” OR the Assistant State Attorney currently
assigned in STAC at the time of filing, via the STAC case management exchange on this 29 day
rJ
cJ
d--¾
~-·
of October, 2022.
_____________________________
Tiffany Benson
Assistant Public Defender
000126
69
1
2
you deny it.
THE COURT:
I'll give the State a little
3
more time if you want to research it further.
4
It was a late-filed motion.
5
a little bit later.
So I'll address it
6
Are there any other pretrial motions?
7
yes, the objection to six-person jury, Motion
8
for twelve-person jury.
9
argument?
Oh,
Any additional
10
MS. RUGGIERO:
11
THE COURT:
Any response?
12
MS. BENSON:
No, Your Honor.
13
MS. THANNIKKOTU:
No, Your Honor.
Your Honor, the law
14
requires a six-person jury, so I believe Your
15
Honor is legally required to deny it and that
16
is being preserved for appellate issues.
17
THE COURT:
All right.
The motion is
18
respectfully denied and the issue is preserved.
19
The law is clear that this is a six-person jury
20
case.
21
So these are Counts 1 and 2 -- oh,
22
actually let's have him arraigned on the
23
amended Information, Ms. Benson.
24
25
MS. BENSON:
Yes, Your Honor.
At this
time, we enter a plea of not guilty, waive
314
1
3.3, Ms. Tomsula.
2
THE COURT:
3
3.4, Ms. Maria.
4
MS. BENSON:
Defense accepts.
5
THE COURT:
Does the State accept?
6
MS. THANNIKKOTU:
7
THE COURT:
8
9
10
Okay, which brings in Juror
Does the Defense accept?
The State accepts.
Defense accept accept?
We
have 1.1, 1.4, 2.6, 3.1, 3.2, 3.4.
MS. THANNIKKOTU:
May I have a moment,
Your Honor?
11
THE COURT:
Sure.
12
MS. BENSON:
Bear with me, I'm not
13
requesting -- I have to make sure that I get
14
this right.
15
strikes.
16
jury that was denied.
17
review right now at the Supreme Court.
18
issue, I don't want to waive that issue.
19
concerned if I agree to accept the panel that
20
will waive the issue.
21
highlight that I don't have anymore --
22
23
24
25
I'm not requesting any additional
I have filed a Motion for a 12-person
THE COURT:
It's currently up for
This
I'm
So I just want to
You have no additional
strikes.
MS. BENSON:
challenges.
No additional cause
We are stuck at the point where I
315
1
would accept.
2
I'm objecting still requesting to preserve my
3
issue for the 12-person jury.
4
5
However, I cannot accept because
THE COURT:
So the 12-person jury is the
sole issue --
6
MS. BENSON:
That is correct.
7
THE COURT:
-- that you're objecting to.
8
Otherwise you accept with that objection
9
preserved?
10
MS. BENSON:
Yes, that is correct.
11
THE COURT:
Okay.
12
MS. THANNIKKOTU:
I think -Back to me for final
13
acceptance, Judge.
14
THE COURT:
15
MS. THANNIKKOTU:
16
strike Juror 3.4, Ms. Maria.
17
18
THE COURT:
Back to the State for final.
The State is going to
Which brings in 3.5, Ms.
Runkle.
19
MS. BENSON:
Defense accepts.
20
THE COURT:
Does the State accept?
21
MS. THANNIKKOTU:
22
THE COURT:
State accepts.
Does the Defense accept
23
barring the reservation for the objection for
24
the 12-person jury?
25
MS. BENSON:
I unfortunately have been
320
1
have them come back to the glass doors at
2
2 o'clock.
3
Weiss' courtroom and you guys can come to 11H
4
just before two.
5
ten minutes before, then we'll be good to go.
6
You all will be good to go.
They'll be led back into Judge
If you can get there five,
7
MS. BENSON:
Yes, Your Honor.
8
THE COURT:
Let me just ask because I know
9
that -- Mr. Quinn, I just want to go over --
10
The jury that's been selected.
11
that you're preserving a right to appeal the
12
issue of having a 12-person jury because that's
13
the request that you made.
14
being the case and preserving that right, you
15
have been here for all the jury selection, you
16
have been able to consult with your attorneys,
17
while preserving your right to appeal, that
18
issue, that being held, do you have any
19
additional issues with this jury that's been
20
selected or do you otherwise accept --
21
otherwise agree to this panel?
22
THE DEFENDANT:
23
THE COURT:
24
25
Aside from that
Yes.
All right.
much.
THE DEFENDANT:
I understand
Yes.
Thank you very
POINT III
APPELLANT WAS ENTITLED TO A TWELVE-PERSON
JURY UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS
Appellant was convicted by a jury comprised of six people. T
393 He argues that the Sixth and Fourteenth Amendments
guarantee the right to a twelve-person jury when the defendant is
charged with an offense punishable by more than six months in jail.
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).
This issue is preserved for appellate review. Before trial
defense counsel objected in writing, and during jury selection she
objected orally, that appellant was entitled to a twelve-person jury
under the Sixth and Fourteenth Amendments. R 117-28; T 69, 31416. She renewed this objection before the jury was sworn. T 321.
The trial court overruled these objections. T 69, 321. Thus, defense
counsel preserved this issue for appellate review. See generally
Baccari v. State, 145 So. 3d 958, 961 (Fla. 4th DCA 2014) (to
preserve jury selection issues for appellate review counsel must
renew the objection before the jury is sworn).
20
And even if defense counsel had not objected, appellant could
raise this issue on appeal. This is because the issue isn’t whether
appellant preserved this issue by objecting in the trial court; the
issue is whether he personally waived his constitutional right to a
twelve-person jury, and he did not. For example, even if defense
counsel had no objection to a five-person jury, but the trial court
did not secure the defendant’s personal waiver of his or her right to
a six-person jury, the case would present reversible error on appeal.
Wallace v. State, 722 So. 2d 913, 914 (Fla. 2d DCA 1998); Gamble v.
State, 696 So. 2d 420, 420 (Fla. 5th DCA 1997); Blair v. State, 698
So. 2d 1210, 1217-18 (Fla. 1997); see also Johnson v. State, 994 So.
2d 960, 963-64 (Fla. 2008) (holding that defendant must personally
waive constitutional right to have jury decide prior-convictions
element in felony DUI case; defense counsel’s stipulation that trial
court act as factfinder is insufficient); but see Albritton v. State, 48
Fla. L. Weekly D922 (Fla. 4th DCA May 3, 2023).
The Supreme Court held in Williams v. Florida, 399 U.S. 78,
86 (1970), that juries as small as six were constitutionally
permissible. But Williams is impossible to square with the Court’s
ruling in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), which
21
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. This full-scale embrace of the
fixed-meaning canon, 1 means that trial by a six-person jury violates
the Sixth and Fourteenth Amendments to the United States
Constitution.
Appellant acknowledges that this Court rejected this argument
in Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), rev. denied,
No. SC22-1597 (Fla. June 6, 2023). Guzman will be seeking review
in the United States Supreme Court. Appellant raises this issue to
keep his case in the appellate pipeline. See Hollingsworth v. State,
293 So. 3d 1049, 1051 (Fla. 4th DCA 2020), rev. denied, 2020 WL
5902598 (Fla. Oct. 5, 2020) (“Appellate counsel acted in good faith
and did not deserve the court's criticism [for arguing that existing
law should be reversed].”); Sandoval v. State, 884 So. 2d 214, 216
n.1 (Fla. 2d DCA 2004) (“Counsel has the responsibility to make
See New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142
S.Ct. 2111, 2132 (2022) (the meaning of the Constitution “is fixed
according to the understandings of those who ratified it”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 78 (2012) (“Words must be given the meaning they had when
the text was adopted.”),
1
22
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 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).
In rejecting Guzman’s argument, this Court cited State v.
Khorrami, 1 CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App. July
29, 2021). Guzman, 350 So. 3d at 73. At the time of this Court’s
decision, Khorrami’s petition for writ of certiorari in the United
States Supreme Court was pending. The petition was subsequently
denied, over dissents by Justice Gorsuch, who wrote an opinion
stating that he would grant the writ, and Justice Kavanaugh.
Khorrami v. Arizona, 21-1553, 2022 WL 16726030 (U.S. Nov. 7,
2022). (This Court should compare Justice Gorsuch’s opinion that a
twelve-person jury is constitutionally required with the First
District’s recent opinion that said that that position was “nearly
frivolous.” Brown v. State, 48 Fla. L. Weekly D775, D777 n.1 (Fla.
1st DCA Apr. 12, 2023).)
23
Although there is no legal significance to the denial of a
petition for writ of certiorari, 2 there are differences between
Florida’s and Arizona’s systems that may account for the denial of
the writ.
In Arizona, criminal defendants are guaranteed “a twelveperson jury in cases when the sentence authorized by law is death
or imprisonment for thirty years or more…. Otherwise, a criminal
defendant may be tried with an eight-person jury.” State v.
Khorrami, 2021 WL 3197499, at *8 (citations omitted). Florida juries
are smaller (six versus eight), and those smaller juries are
mandated in every case except capital cases.
And the origin of Florida’s rule is disturbing. In his dissent,
Justice Gorsuch observed: “During the Jim Crow era, some States
restricted the size of juries and abandoned the demand for a
unanimous verdict as part of a deliberate and systematic effort to
suppress minority voices in public affairs.” Khorrami v. Arizona,
2 See Ramos v. Louisiana, 140 S.Ct. 1390 (2020) at n.56 (“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.”) (cleaned up).
24
2022 WL 16726030, at *5 (Gorsuch, J., dissenting) (citations
omitted). He noted, however, that Arizona’s law was likely motivated
by costs not race. Id. But Florida’s jury of six did arise in that Jim
Crow era context of a “deliberate and systematic effort to suppress
minority voices in public affairs.” Id. 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); Florida Fertilizer, 34 So.
at 241.
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
25
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
26
whites to frame a constitution designed to continue white
dominance.” Hume at 15.
The 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.
Smaller juries and non-unanimous verdicts were part of a Jim
Crow era effort “to suppress minority voices in public affairs.”
Khorrami v. Arizona, 2022 WL 16726030, at *5 (Gorsuch, J.,
dissenting); see also Ramos, 140 S. Ct. 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.
Appellant’s conviction by a six-person jury violates the Sixth
and Fourteenth Amendments. As Justice Gorsuch stated:
27
For almost all of this Nation’s history and centuries
before that, the right to trial by jury for serious criminal
offenses meant the right to a trial before 12 members of
the community. In 1970, this Court abandoned that
ancient promise and enshrined in its place bad social
science parading as law. That mistake continues to
undermine the integrity of the Nation’s judicial
proceedings and deny the American people a liberty their
predecessors long and justly considered inviolable.
Khorrami v. Arizona, 2022 WL 16726030, at *5 (Gorsuch, J.,
dissenting).
28
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
SENTENCE
(As to Count(s) ____1,__i._ _ _ _ _)
Defendant:
fredci 'e &u \nn
Case Number: 202 \
Cf-00 f5BZ88i)(.He>
OBTS Number:
APD
,
The Defendant, being personally before this Court, accompanied by the defendant's attorney of record,
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 Defendant should not be sentenced as provided by law, and no cause being shown,
IT IS THE SENTENCE OF THE COURT that:
The Defendant pay a fine of$ _ _ _ pursuant to§ 755.083, Florida Statutes, plus$ ___ as the 5% surcharge required by section
938.04, Florida Statutes.
The Defendant is hereby committed to the custody of the
1)4.Department of Corrections
[ ] Sheriff of Palm Beach County, Florida
[ ] Department of Corrections as a youthful offender
For a term of ---'~'-L-"1---'~..,__.__-_. It is further ordered that the Defendant shall be allowed a total of (
days as credit for time
incarcerated prior to i osition of this sentence. It is further ordered that the composite term of all sentences imposed for the counts
specified in the order shall run
[ ] consecutive to
concurrent with (check one) the following:
[ ]
Any ~ctiv~ntence being served.
1
~
Specific sentences:
,+-t-J~l.l_~·~-._,f_v~/_____________________
2liJ
NJ
.kf I
----~C. .
[ ]
3
The instant sentence is based upon the Court having previously placed the Defendant on probation and having
subsequently revoked the Defendant's probation for violation(s) of condition(s)_ _ _ _ _ __
In the event the above sentence is to the Department of Corrections, the Sheriff of Palm Beach County, Florida is hereby ordered and
directed to deliver the Defendant to the Department of Corrections together with a copy of the Judgment and Sentence, and any other
documents specified by Florida Statute. Additionally, pursuant to §947 .16(4 ), Florida Statutes, the Court retains jurisdiction over the
Defendant.
[ ]
The Sentencing Court objects to the Defendant being placed into the Youthful Offender Basic Training Program pursuant to
Florida Statute §958.045.
[ ]
Pursuant to §322.055, 322.056, 322.26, 322.274, Florida Statutes, The Department of Highway Safety and Motor Vehicles is
directed to revoke the Defendant's privilege to drive. The Clerk of the Court is Ordered to report the conviction and revocation
to the Department of Highway Safety and Motor Vehicles.
DONE AND ORDERED in Open Court at West Palm Beach, Palm Beach County, Flori
this
\ U) day of
QC,C·
FILED
Circuit Criminal Department
DEC 16 2022
JOSEPH ABRUZZO
October 2019
Clerk of the Circuit Court & Comptroller
Palm Beach County
000187
Form 14
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
SENTENCE
'3_____)
(As to Count(s) ____
Defendant: fl
ectd ie, G..\A ·1 0 t'1
Case Number:
20 2-,\ Cf QQ68 2C?J AX)(.~I!,
OBTS Number:
rrPD
'
The Defendant, being personally before this Court, accompanied by the defendant's attorney of record,
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 Defendant should not be sentenced as provided by law, and no cause being shown,
IT IS THE SENTENCE OF THE COURT that:
The Defendant pay a fine of$ _ _ _ pursuant to § 755.083, Florida Statutes, plus$ ___ as the 5% surcharge required by section
938.04, Florida Statutes.
The Defendant is hereby committed to the custody of the
r)('.1 Department of Corrections
L]"Sheriff of Palm Beach County, Florida
[ ] ~epartment of Corrections as a youthful offender
~
rt is further ordered that the Defendant shall be allowed a total of
days as credit for time
For a term of
incarcerated prior to imposition of this sentence. It is further ordered that the composite term of all sentences imposed for the counts
specified in the order shall run
[ ] consecutive to 1)4..concurrent with (check one) the following:
[ ]
Any active sentence being served.r .1-..f
-, ":>
~
Specific sentences:
~ ' I / '-' / :::>
l5
ea r! .
[ ]
The instant sentence is based upon the Court having previously placed the Defendant on probation and having
subsequently revoked the Defendant's probation for violation(s) of condition(s)_ _ _ _ _ __
l2J.P
In the event the above sentence is to the Department of Corrections, the Sheriff of Palm Beach County, Florida is hereby ordered and
directed to deliver the Defendant to the Department of Corrections together with a copy of the Judgment and Sentence, and any other
documents specified by Florida Statute. Additionally, pursuant to §94 7 .16(4 ), Florida Statutes, the Court retains jurisdiction over the
Defendant.
[ ]
The Sentencing Court objects to the Defendant being placed into the Youthful Offender Basic Training Program pursuant to
Florida Statute §958.045.
[ ]
Pursuant to §322.055, 322.056, 322.26, 322.274, Florida Statutes, The Department of Highway Safety and Motor Vehicles is
directed to revoke the Defendant's privilege to drive. The Clerk of the Court is Ordered to report the conviction and revocation
to the Department of Highway Safety and Motor Vehicles.
DONE AND ORDERED in Open Court at West Palm Beach, Palm Beach County,
orida this
_li.Q_ day of ce..cr
FILED
Circuit Criminal Department
DEC 16 2022
C
JOSEPH ABRUZZO
October 2019
Cter1( of the Circuit Court & Compltolter
Form 14
Palm Beach County
000188
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
SENTENCE WITH
SPECIAL PROVISIONS
(As to Count(s) _ _I__
, 2. . ,_3
. . _ _ __,)
frectd \f; G.v\1"on
Fl LED
Defendant:
DEC 16 2022
Case Number:
JOSEPH ABRUZZO
OBTS Number:
Circuit Criminal Department
Clerk of the Circuit Court & Comptroller
Palm Beach County
ZQUC,f00 '5 828 f\&(.J1 f3
VLVJ
I)
The Defendant, being personally before this Court, accompanied by the defendant's attorney ofrecord, ____._n.._._r~--------'
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 Defendant should not be sentenced as provided by law, and no cause being shown,
IT IS THE SENTENCE OF THE COURT that:
By reference to count, the following additional provisions apply to the sentence imposed:
Count
FIREARM
It is further ordered that the _ _ _ _ (_) year minimum imprisonment provision of section 775.087(2), Florida
Statutes, is hereby imposed for the sentence specified in this count.
L
.,
PRISON RELEASEE RE-OFFENDER
The Defendant is adjudicated a prison release re-offender and has been sentenced in accordance with the provisions
of Florida Statute 775.082(9). The Defendant shall be released only by expiration of sentence and shall not be
eligible for parole, control release, or any form of early release. Additionally, the Defendant must serve 100 percent
of the statutory maximum. The requisite findings by the Court are set forth in a separate order or stated in the record
in Open Court.
DRUG TRAFFICKING
It is further ordered that the _____ mandatory minimum imprisonment provision of section 893.135(1 ),
Florida Statutes, is hereby imposed for the sentence specified in this count.
CONTROLLED SUBSTANCE WITHIN 1,000 FEET OF SCHOOL
It is further ordered that the 3-year minimum imprisonment provision of section 893.13(l)(c)l, Florida Statutes, is
hereby imposed for the sentence specified in this count.
June,2014
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 OFFENDER
The Defendant is adjudicated a habitual violent felony offender and has been sentenced to an extended term in
accordance with the provisions of section 775.084(4)(b), Florida Statutes. A minimum term of _ _ _ _ year(s)
must be served prior to release. The requisite findings by the Court are set forth in a separate order or stated on the
record in Open Court.
Page 1 of 3
000189
Form# 14.1
._,
Case No ]07,,\(f0()6928~e
Defendant:f• &U\nY\
THREE TIME VIOLENT FELONY OFFENDER
The Defendant is adjudicated a three-time violent felony offender and has been sentenced in accordance with the
provisions of Florida Statute 775.084(4)(c). The requisite findings by the Court are set forth in a separate order or
stated in the record in Open Court. '
VIOLENT CAREER CRIMINAL
The Defendant is adjudicated a habitual violent offender and has been sentenced to an extended term in accordance
with the provisions of Florida Statute 775.084(4)(d). A minimum term of _ _ _ _ _ years must be served prior
to release. The requisite findings by the Court are set forth in a separate order or stated in the record in Open Court.
DUI MANSLAUGHTER
It is further ordered that the Defendant shall serve a mandatory minimum of four (4) years before release in
accordance with Florida Statute 316.193.
LAW ENFORCEMENT PROTECTION ACT
It is further ordered that the Defendant shall serve a minimum of _ _ _ _ _ years before release in accordance
with section 775.0823, Florida Statutes. (Offenses committed before January 1, 1994)
CRIMES AGAINST LAW ENFORCEMENT OFFICERS (check one)
[__] The Defendant having been convicted of Aggravated Assault on a Law Enforcement Officer, it is further
ordered that the Defendant shall serve a minimum of 3 years before release in accordance with Florida
Statute 784.07(2)(c ).
[__] The Defendant having been convicted of Aggravated Battery on a Law Enforcement Officer, it is further
ordered that the Defendant shall serve a minimum of 5 years before release in accordance with Florida
Statute 784.07(2)(d).
[__] The Defendant having been convicted of Battery on a Law Enforcement Officer and having possessed a
firearm or destructive device during the commission of said offense, it is further ordered that the Defendant
shall serve a minimum of3 years before release in accordance with Florida Statute 784.07(3)(a).
CA PITAL OFFENSE
It is further ordered that the Defendant shall serve no less than 25 years in accordance with the provisions of section
775.082(1), Florida Statutes. (Offenses committed before October 1, 1995)
-
SHORT-BARRELED RIFLE, SHOTGUN, MACHINE GUN
It is further ordered that the 5-year minimum provisions of section 790.221 (2), Florida Statutes, are hereby imposed
for the sentence specified in this count. (Offenses committed before January I, 1994)
TAKING A LAW ENFORCEMENT OFFICER'S FIREARM
It is further ordered that the 3-year mandatory minimum imprisonment provision of section 775.0875(1 ), Florida
Statutes, is hereby imposed for the sentence specified in this count. (Offenses committed before January 1, 1994)
SEXUAL OFFENDER/SEXUAL PREDA TOR DETERMINATIONS:
SEXUAL PREDATOR
The Defendant is adjudicated a sexual predator as set forth in section 775.21, Florida Statutes.
SEXUAL OFFENDER
The Defendant meets the criteria for a sexual offender as set forth in section 943.0435(1 )(a) la., b., c., or d.
AGE OF VICTIM
The victim was _ _ _ _ _ years of age at the time of the offense.
AGE OF DEFENDANT
The Defendant was _ _ _ _ years of age at the time of the offense.
June,2014
Page 2 of 3
000190
Form# 14.2
,.,,J
Case No 10Z\lf00m328~¥S
Defendant: f. &Ulf\r'.\
RELATIONSHIP TO VICTIM
The Defendant is not the victim's parent or guardian.
SEXUAL ACTIVITY [F.S. 800.04(4)]
The offense
did _ _ _ did not involve sexual activity.
USE OF FORCE OR COERCION [F.S. 800.04(4)]
The sexual activity described herein__ did___ did not involve the use of force or coercion.
--
USE OF FORCE OR COERCION/UNCLOTHED GENITALS [F.S. 800.04(5)]
The molestation
did _ _ _ did not involve unclothed genitals or genital area.
The molestation
did _ _ _ did not involve the use of force or coercion.
OTHER PROVISIONS:
CRIMINAL GANG ACTIVITY
The felony conviction is for an offense that was found, pursuant to section 874.04, Florida Statutes, to have been
committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
RETENTION OF JURISDICTION
The Court retains jurisdiction over the Defendant pursuant to section 947 .16(4), Florida Statutes.
SUSPENDED AND/OR SPLIT SENTENCES:
Said SENTENCE SUSPENDED for a period of _ _ _ _ _ subject to conditions set forth in a separate order
entered herein.
However, after serving a period of _ _ _ _ _ _ _ imprisonment the balance of such sentence shall be suspended
and the Defendant shall be placed on probation for a period of _ _ _ _ _ _ under supervision of the Department
of Corrections, according to the terms and conditions of probation as set forth in a separate order entered herein.
Followed by a period of _ _ _ _ _ _ _ on probation under the supervision of the Department of Corrections,
according to the terms and conditions of probation as set forth in a separate order entered herein.
In the event the above sentence is to the Department of Corrections, the Sheriff of Palm Beach County, Florida is hereby ordered and
directed to deliver the Defendant to the Department of Corrections together with a copy of the Judgment and Sentence, and any other
documents specified by Florida Statute. Additionally, pursuant to §947.16(4), Florida Statutes, the Court retains jurisdiction over the
Defendant.
DONE AND ORDERED in Open Court at Palm Beach County, Florida on this _.,,_=-_day of
20
11..,,
June,2014
.
Page 3 of 3
000191
'De,.(.
Form# 14.3
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.