Petition for Writ of Certiorari — David Phillip Ryan, Petitioner v. Florida

Supreme Court briefMar 12, 2024

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Appendix A

Third District Court of Appeal

State of Florida

Opinion filed December 13, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0589

Lower Tribunal No. F21-20316

________________

David Phillip Ryan,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz,

Judge.

Carlos J. Martinez, Public Defender, and Nicholas A. Lynch and

Andrew Stanton, Assistant Public Defenders, for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Senior

Assistant Attorney General, for appellee.

Before LOGUE, C.J., and EMAS and BOKOR, JJ.

EMAS, J.

David Ryan appeals a final judgment of conviction and sentence,

following a jury trial, for misdemeanor trespass and resisting an officer

without violence. 1 On appeal, he raises four issues: (1) the trial court erred

in denying Ryan’s motion to empanel a twelve-person jury instead of a sixperson panel, in violation of the Sixth Amendment to the United States

Constitution; (2) the trial court abused its discretion in denying his

peremptory challenge of a prospective juror; (3) Ryan is entitled to

resentencing because the judge’s comments at a post-sentencing hearing

indicate vindictiveness in the prior imposition of sentence; and (4) Ryan is

entitled to resentencing because the record raises a reasonable question as

to whether the judge sentenced Ryan based on the credibility of his trial

testimony. We affirm, and write to more fully address the final point raised

on appeal.2

Ryan was charged by Information with battery on a law enforcement officer

(a third-degree felony), resisting arrest without violence, and trespass (each

a first-degree misdemeanor). The jury found Ryan not guilty of the felony

offense, and guilty of the two misdemeanor offenses. The trial court imposed

two consecutive terms of probation (364 days each) with a special condition

of 90 days in the county jail, to be reduced to “credit time served” upon

Ryan’s acceptance into an inpatient alcohol/drug treatment program.

As to the first issue (denial of a motion to empanel a twelve-person jury),

Ryan candidly concedes that we are bound by our precedent to affirm. See

Jimenez v. State, 167 So. 3d 497 (Fla. 3d DCA 2015). See also Williams v.

Florida, 399 U.S. 78 (1970); Simpson v. State, 368 So. 3d 513 (Fla. 5th DCA

2023); Brown v. State, 359 So. 3d 408 (Fla. 1st DCA 2023); Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022); Phillips v. State, 316 So. 3d 779 (Fla.

Ryan contends the trial court’s sentence was fundamentally erroneous

because it was based in some part on the court’s belief that Ryan did not

testify truthfully at trial. Specifically, Ryan challenges statements made by

the trial court during a post-sentencing hearing on defendant’s motion, at

which defendant sought post-trial release pursuant to Florida Rule of

Criminal Procedure 3.691. Ryan sought such release either by supersedeas

bond pending appeal, or by reconsideration of the incarcerative portion of

the sentence (ninety days in county jail to be reduced to credit time served

upon Ryan’s entry into an inpatient alcohol/drug treatment facility). At one

point during the hearing, Ryan’s wife spoke with the court in support of the

request, and told the court her husband had not been drinking since the day

of his arrest. After hearing from Ryan’s wife, the trial court denied the motion

to reconsider, explaining to Ryan’s wife:

You know, there are a couple of issues that I have with – with

this – with the request. One is the facts that came out at trial.

How abusive – how abusive and insulting Mr. Ryan was. His

testimony at trial was completely inconsistent with the other

witnesses. His counteroffer [prior to commencement of trial] was

to immediately have all the charges dismissed, to have an

apology letter written by these two officers published in the Miami

Herald. . . . Ma’am, your motion is denied. This court could have

1st DCA 2021); Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008). We

note, however, that this issue is currently pending on a petition for writ of

certiorari in the United States Supreme Court. See Guzman v. Florida, No.

23-5173 (Docketed July 17, 2023); Cunningham v. Florida, No. 23-5171

(Docketed July 21, 2023).

sentenced Mr. Ryan to 364 days in custody followed by 364 days

in custody. And based on the facts that came out during this trial,

this Court gave that very serious consideration.

(Emphasis added).

Traditionally in Florida, it was “fundamental error for a sentencing judge

to take into consideration a defendant’s truthfulness while testifying.” Ward

v. State, 152 So. 3d 679, 679 (Fla. 4th DCA 2014). See also Daytona Beach

v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985); Beauvais v. State, 475 So.

2d 1342 (Fla. 3d DCA 1985). However, the Florida Supreme Court, relying

on federal precedent in United States v. Grayson, 438 U.S. 41 (1978),

recently clarified the law in this area, adopting the proposition that “a judge

may evaluate whether a defendant’s in-court statements contained

falsehoods and, if so, assess that fact along with all of the other sentencing

considerations.” State v. Burns, 339 So. 3d 965, 967 (Fla. 2022). While the

record is not entirely clear on whether (or the extent to which) the trial court

considered Ryan’s testimony at the time it imposed sentence, we hold,

pursuant to Burns, that it was not error for the trial court to consider Ryan’s

testimony in fashioning the appropriate sentence. See also Davis v. State,

332 So. 3d 970, 977 (Fla. 2021) (“[B]ecause Davis waived the right to

maintain his silence, the trial court did not violate Davis's right to due process

by considering the words that Davis voluntarily offered in imposing a

sentence . . . . [At sentencing Davis] chose to make a lengthy statement

claiming innocence, denying responsibility, and placing blame for his

conviction on the alleged misconduct of others. The trial court was under no

obligation to ignore such statements and did not err in considering those

statements in imposing the legal sentence here.”)

Affirmed. 3

We find no merit in the remaining points raised on appeal, and affirm without

further discussion. See Fernandez v. State, 746 So. 2d 516, 517-18 (Fla. 3d

DCA 1999) (“[T]he trial court should not have accepted the prosecutor's

stated reason for striking [the prospective juror], which reason was a lack of

information on the prosecutor's part because of failure to examine or

question [the prospective juror]. An attorney cannot decline the opportunity

to question a prospective juror, then use the lack of information caused by

this failure as a reason to support her or his peremptory challenge. A

perfunctory examination (or none) is indicative of a disingenuous or

pretextual explanation for a challenge); Lidiano v. State, 967 So. 2d 972, 974

(Fla. 3d DCA 2007) (“We begin our analysis, as we must, from the

perspective that recognizes that a trial court’s decision to accept or reject an

attorney’s explanation for the peremptory challenge of a juror turns primarily

on an assessment of the attorney’s credibility, which must be affirmed on

appeal unless clearly erroneous.”). See also Alvarez-Hernandez v. State,

319 So. 3d 121, 123 (Fla. 3d DCA 2021) (“When a claim of vindictive

sentencing is raised, the reviewing court must examine all of the surrounding

circumstances of a rejected plea and the sentence imposed to determine

whether they create a presumption of vindictiveness. If the totality of the

circumstances give rise to a presumption of vindictiveness, then the burden

shifts to the state to produce evidence to dispel the presumption. However,

if the totality of the circumstances do not give rise to a presumption of

vindictiveness, the burden never shifts to the State and the defendant must

satisfy his burden to prove actual vindictiveness.” (quoting Williams v. State,

225 So. 3d 349, 353 (Fla. 3d DCA 2017) (additional quotation omitted)).

Appendix B

Filing # 183063504 E-Filed 10/02/2023 05:40:25 PM

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

CASE NO. 3D23-589

L.T. NO. F21-20316

DAVID P. RYAN,

Appellant

-vs.STATE OF FLORIDA,

Appellee.

________________________________________________________

INITIAL BRIEF OF APPELLANT

APPEAL FROM THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND

FOR MIAMI-DADE COUNTY

CARLOS J. MARTINEZ

Public Defender

Eleventh Judicial Circuit of Florida

1320 NW 14th Street

Miami, Florida 33125

305.545.1961

NICHOLAS A. LYNCH

Assistant Public Defender

Florida Bar No. 1025207

NAL@pdmiami.com

ANDREW STANTON

astanton@pdmiami.com

Florida Bar No. 046779

Counsel for Appellant

CONTENTS

Authorities ..................................................................... ii

Introduction ................................................................... 1

Statement of the Case and Facts .................................... 1

Overview. ............................................................. 1

Jury selection ....................................................... 4

Judicial commentary on Ryan’s decision to go to

trial ...................................................................... 9

Summary of the Argument ........................................... 15

Argument ..................................................................... 17

I. The court erred in denying Ryan’s peremptory

challenge to Juror 28, Pauline Smith. The

challenge was presumptively non-discriminatory,

and the record does not support the court’s

implicit finding that the strike was motivated by

the juror’s race and/or gender. .......................... 17

II. The court erred in denying Ryan’s motion to

empanel a twelve-person jury. ........................... 23

III.Ryan’s sentence is presumptively vindictive. ... 23

IV. The court also fundamentally erred by sentencing

Ryan based on her incredulity about Ryan’s trial

testimony. ........................................................... 36

Conclusion ................................................................... 39

Certificates ................................................................... 39

10a

AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972)....................... 27

Ballew v. Georgia, 435 U.S. 223 (1978) .................. 28, 29

Blanco v. State, 849 So. 2d 381 (Fla. 3d DCA 2003)...... 30

Brandful v. State,

858 So. 2d 367 (Fla. 3d DCA 2003) ...................... 30, 35

Brannon v. State,

320 So. 3d 898 (Fla. 3d DCA 2021) .......... 18, 19, 20, 22

Brown v. State, 359 So. 3d 408 (Fla. 1st DCA 2023) ..... 29

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) ............... 24

Diaz v. State, 106 So. 3d 515 (Fla. 2d DCA 2013) ......... 36

Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 23

Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241 (Fla. 1903)................................................ 24

Gibson v. State, 16 Fla. 291 (1877) ............................... 24

Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022) ...................... 28, 29

Hamdeh v. State, 762 So. 2d 1030 (Fla. 3d DCA 2000) . 19

Hampton v. State,

178 So. 3d 921 (Fla. 5th DCA 2015) .................... 37, 38

Jimenez v. State, 167 So. 3d 497 (Fla. 3d DCA 2015) ... 29

Khorrami v. Arizona,

21-1553, 143 S.Ct. 22 (U.S. Nov. 7, 2022) ................. 28

Kimbrough v. State,

300 So. 3d 1234 (Fla. 3d DCA 2020) .................... 36, 38

11a

Maxwell v. Dow, 176 U.S. 581 (1900) ........................... 25

Melbourne v. State, 679 So.2d 759 (Fla. 1996) .............. 17

North Carolina v. Pearce, 395 U.S. 711 (1969) .............. 30

Patton v. United States, 281 U.S. 276 (1930)................. 25

Phillips v. State, 316 So. 3d 779 (Fla. 1st DCA 2021) .... 28

Ramos v. Louisiana, 140 S.Ct. 1390 (2020) ............ 23, 27

Ryan v. State, 311 So. 3d 276 (Fla. 2d DCA 2020) ........ 30

Simplice v. State,

134 So. 3d 555 (Fla. 5th DCA 2014) .................... 30, 31

Simpson v. State, 48 Fla. L. Weekly D1541

(Fla. 5th DCA Aug. 4, 2023) ....................................... 29

State v. Johnson, 295 So. 3d 710 (Fla. 2020) ................ 20

State v. Warner, 762 So. 2d 507 (Fla.2000)................... 31

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

Whirley v. State, 450 So. 2d 836 (Fla. 1984) ................. 23

Williams v. Florida, 399 U.S. 78 (1970) ............. 25, 26, 27

Williams v. State, 164 So. 3d 739 (Fla. 2d DCA 2015) ... 36

Wilson v. State, 845 So. 2d 142 (Fla. 2003)....... 30, 31, 35

Wilson v. State, 951 So. 2d 1039 (Fla. 3d DCA 2007) .... 32

Statutes

Art. I, § 9, Fla. Const .................................................... 23

U.S. Const. Amend. VI.................................................. 23

Other Authorities

A Meta-Analysis of the Effects of Jury Size, 21 Law &

Hum. Behav. 451 (1997) ............................................ 28

iii

12a

INTRODUCTION

David Ryan appeals a final judgment of conviction and

sentence for misdemeanor trespass and resisting an officer

without violence after a jury trial. (R. 70-72, 73-79). The

Honorable Mavel Ruiz, Circuit Judge, presided below.

This brief uses “C.T.” to denote citations to the corrected

trial transcript filed simultaneously with this brief. “R.”

denotes citations to the record on appeal. Unless otherwise

noted, all emphasis is added.

STATEMENT OF THE CASE AND FACTS

Overview. David Ryan went shopping at his local

Publix two days before Thanksgiving. (C.T. 582-83). He

paid a visit to the store’s butcher, who sometimes set aside

scraps of meat for Ryan’s dog, Bear. (C.T. 583-84). During

that conversation another Publix employee complained to

store security guard Daniel Narathan that Ryan was

cursing. (C.T. 503-04). Narathan and an unidentified

Publix manager then approached Ryan and asked him to

leave. (C.T. 503-04, 585-89).

13a

In response, Ryan got in line to pay for his groceries.

(C.T. 585-89). The manager followed and told Ryan to leave

immediately; he was not allowed to pay for his groceries.

(C.T. 585-89). Ryan left emptyhanded. (C.T. 585-89).

Three police officers arrived at Publix before Ryan

finished leaving the parking lot. (C.T. 363-65, 590, 67364). Narathan and the manager directed the police to Ryan

and accused him of drinking, yelling, and cursing while he

was in the store. (C.T. 378-79).

Officer Bermudez testified that he and Officer Rocha

approached Ryan “to possibly initiate a trespass at that

time.” (C.T. 367). Ryan seemed drunk. (C.T. 369). In a

conversation recorded on body-worn camera and played at

trial, Ryan spoke gratingly to the officers but did not

threaten them. (C.T. 378-84). Officer Rocha admonished

Ryan: “I have every right to trespass-warn you from this

property as soon as I talk to the manager, okay?”

(C.T. 380).

After beginning to walk away, Ryan turned around and

asked the police: “do you have any idea about the United

14a

States Constitutional law?” (C.T. 381). In response, Officer

Rocha conscripted the nearest Publix employee—bag boy

Armando Gonzalez—and ordered him to tell Ryan to leave.

(C.T. 382, 418, 594-96). Gonzalez complied. (C.T. 418,

594-95). Ryan did not. (C.T. 382-84).

The police arrested Ryan. (C.T. 384). With Ryan face

down on the ground, Officer Rocha repeatedly punched

him in the head. (C.T. 420-23). Blood from Ryan’s face

pooled on the pavement. (C.T. 374, 420, 482, 605). Ryan

testified at trial that he was choking on his own blood.

(C.T. 605). He was hospitalized twice for his injuries: first

on the night of his arrest, (C.T. 427), and again upon his

release from jail a few days later. (C.T. 608-09).

The state charged Ryan with battering Officer Rocha, a

third-degree felony; resisting Officers Bermudez and

Rocha without violence, a first-degree misdemeanor; and

trespass to property other than a structure or conveyance,

another first-degree misdemeanor. (R. 12-17).

Ryan demanded a jury trial. (R. 18-19).

15a

Jury selection. Ryan filed a written motion to empanel

a twelve-person jury. (R. 21-24). He argued that the

concept of a trial by jury was originally understood as the

right to have one’s guilt determined by a unanimous

verdict of twelve people. (R. 21). He argued that the Sixth

Amendment guaranteed his right to a twelve-person jury

because he was charged with serious offenses. The court

denied the motion before jury selection. (C.T. 36-37).

In addition to the venire’s participation during voir dire,

the

parties

and

judge

gleaned

information

about

prospective jurors from jury questionnaires. (C.T. 115,

192-93, 201-04, 256).

Before

inquiring

about

cause

and

peremptory

challenges, the judge let Ryan confer with his attorneys

about which jurors he wanted to strike. (C.T. 223). Ryan

told the judge that he shared his opinions about the

prospective jurors with his attorneys. (C.T. 228).

Ryan sought to use just two peremptory strikes.

(C.T. 73-287). He used his first peremptory challenge to

remove

venireperson

Tramya

Danielle

Brown—a

16a

corrections officer with several family members in law

enforcement—after the judge refused to remove Officer

Brown for cause. (C.T. 271-76). The state requested a race

and gender-neutral reason for the challenge. (C.T. 275).

Defense counsel explained that Officer Brown and her

entire family work in law enforcement. (C.T. 275). While

the state never questioned defense counsel’s genuineness,

the judge made a finding that the reason was genderneutral and genuine. (C.T. 275). The record establishes

that Officer Brown is a woman but is silent about her race.

(C.T. 271-76).

Ryan sought to use a second peremptory challenge to

remove Juror 28, Pauline Smith, whom he initially

accepted subject to backstrike. (C.T. 231, 277-78). Once

again, the state requested a race and gender-neutral

reason. (C.T. 278). Defense counsel explained: “Your

Honor, the gender and race-neutral reason for striking

Ms. Smith is the fact that we simply do not have a lot of

information on her and are not comfortable with her sitting

on this jury.” (C.T. 278).

17a

The judge responded by bringing Smith in for further

questioning. (C.T. 278). One of Ryan’s attorneys began

questioning Smith based on her questionnaire, which

noted that she had a grandson accused of a crime.

(C.T. 279, 282). Smith explained that she was not

comfortable elaborating on her questionnaire. (C.T. 279).

In response, the attorney who began this line of

questioning stated that he made a mistake and needed her

questionnaire. (C.T. 279).

Co-counsel for the defense took over questioning.

(C.T. 280). Smith explained that she was wearing a mask,

which she was used to wearing because she works at

Broward Hospital. (C.T. 280). Smith insisted that nothing

in her background would distract her or affect her ability

to sit as a juror. (C.T. 280-81).

At the close of questioning by the defense, the judge

denied Ryan’s peremptory challenge, explaining that she

did not find Ryan’s gender and race-neutral reason for

striking Smith to be genuine. (C.T. 281). The judge noted

that the first defense attorney “did say it was a mistake.”

18a

(C.T. 281). The attorney clarified that his statement about

being mistaken was about whether he had the correct

questionnaire—not whether his client wanted to exercise

his peremptory challenge on Smith. (C.T. 281-82).

The judge noted that Smith was the venireperson who

mentioned her grandson in her questionnaire. (C.T. 282).

Thus, it appears that both defense attorneys were referring

to the correct questionnaire all along.

Defense counsel reiterated that “the reason why I

exercised a peremptory strike, or requested to use a

peremptory strike was simply because we do not have a lot

of information about her.” (C.T. 282). The additional

opportunity to question Smith did not change his position.

(C.T. 282).

The

state

genuineness.

never

questioned

(C.T. 277-82).

defense

Nevertheless,

counsel’s

the

judge

denied Ryan’s peremptory challenge and reiterated her

finding that his reason for the strike was disingenuous.

(C.T. 282). The judge told the defense: “You had an

opportunity to ask her, and you didn’t.” (C.T. 282). The

19a

judge added: “[a]nd let me point out that Ms. -- Juror

Number 28 is an African American woman.” (C.T. 282).

Other than this comment, the record is silent about the

racial make-up of the venire. (C.T. 73-287). However, the

record establishes that Ryan accepted several other

women selected for his jury:

Juror

Defense position

Lakisha Nicole Cash Accepted

(C.T. 275)

Nicketris Simmon

Accepted

Mandela

(C.T. 277)

William Anthony

Accepted

Garcia

(C.T. 231)

Alvaro Jose Barrios Accepted

(Alternate)

(C.T. 284)

Simon Alessander

Accepted

Pereira

(C.T. 230)

Irene Zapata

Cause challenge

denied; did not

attempt to

exercise

peremptory

(C.T. 241-45)

Pauline Smith

Initially accepted

(Juror 28)

subject to

backstrike,

(C.T. 231);

peremptory

backstrike denied

(C.T. 277-82)

Sex

(C.T. 120)

(C.T. 144)

(C.T. 143)

(C.T. 150)

(C.T. 151)

(C.T. 159)

Race

Uknown

Unknown

Uknown

Black

(C.T. 282) (C.T. 282)

20a

Ryan tendered the foregoing jury subject to his

previous motions and objections. (C.T. 283, 286).

Judicial commentary on Ryan’s decision to go to

trial. Before jury selection, the judge advised Ryan that

his charges carried a maximum sentence of five years’

state prison, followed by 364 days in jail, followed by

another 364 days in jail. (C.T. 5-6). Ryan confirmed that

he understood. (C.T. 6). The following colloquy ensued:

THE COURT:

What’s the plea offer?

[PROSECUTOR]:

One moment. Yes, Your Honor. The

previous offer was PTI, and the

Defendant rejected it, and now it’s

been withdrawn.

THE COURT:

Okay. I confess I never understand

why anyone would reject PTI.

THE DEFENDANT:

Well, I have a counteroffer if the State

would like to hear it.

THE COURT:

But I confess that I don’t ever

understand why a person would reject

Pre-Trial Intervention where they take

0 risk with their lives.

THE DEFENDANT:

Judge, I --

THE COURT:

I do not understand it. Can you please

explain it to me?

THE DEFENDANT:

Certainly.

21a

THE COURT:

Why -- I don’t want to hear you [sic]

counteroffer at this moment.

THE DEFENDANT:

Okay.

THE COURT:

I want to understand why you’re

rejecting --

THE DEFENDANT:

You --

THE COURT:

-- PTI.

THE DEFENDANT:

You just asked me to explain it to you.

I’m happy to do so.

THE COURT:

I will after I hear why you’re rejecting

PTI.

THE DEFENDANT:

That’s what I’m explaining.

THE COURT:

No, you’re -- you want to tell me what

your counteroffer is.

THE DEFENDANT:

No, no, no. I’m explaining the reason

why I rejected PTI.

THE COURT:

That’s what I’m asking. Go ahead.

THE DEFENDANT:

Because there were many other

conditions associated with it. And I

refuse to do any because I didn’t

commit a crime.

THE COURT:

Okay.

THE DEFENDANT:

That’s the reason why.

THE COURT:

All right. Let’s assume, for arguments

[sic] sake, that you did absolutely

nothing wrong. Nothing. Nothing

wrong.

THE DEFENDANT:

That’s not really --

THE COURT:

Nothing. Let’s assume that, for

argument’s sake. Whatever those

22a

conditions are, are they worth 1 day in

jail to you?

THE DEFENDANT:

Absolutely.

THE COURT:

What’s your counteroffer?

THE DEFENDANT:

My counteroffer is that all charges are

dropped immediately today and the

three officers that put me in the

hospital for doing nothing wrong are

all arrested and charged with

aggravated battery and persec -prosecuted in this courtroom. And

lastly, that the State Attorney’s Office

and all three officer -- officers write me

a specific apology letter and published

[sic] in the Miami Herald.

THE COURT:

Got it. Is that offer accepted?

[PROSECUTOR]:

No, Your Honor.

(C.T. 6-9).

The case proceeded to trial and Ryan testified in his

own defense. (C.T. 580-674). After hearing the evidence,

the jury acquitted Ryan of the only felony charge, battering

a law enforcement officer, but convicted him of the

misdemeanors. (C.T. 875-76).

The judge immediately proceeded to sentencing,

ordering Ryan to serve two consecutive 364-day terms of

23a

drug offender probation1 with a special condition that he

spend 90 days in Dade County Jail and complete a

residential

drug

and

alcohol

treatment

program.

(C.T. 879-88). The judge explained that Ryan would not

need to serve the full 90 days if he gained admission to the

residential treatment program before the end of his jail

term. (C.T. 883-84). Ryan protested that he has never

taken an illegal drug in his life. (C.T. 885).

Ryan’s sentence is harsher than the state requested.

(C.T. 882). The state asked for one year of probation,

without

any

incarceration

institutionalization.

(C.T. 882). The only special conditions of probation sought

by the state were an order to stay away from Publix and

counseling for anger management and substance abuse.

(C.T. 882).

1 Undersigned counsel moved to correct sentencing errors.

(R. 278-88). The motion argued, among other things, that

drug offender probation was an illegal sentence for Ryan’s

crimes of conviction. (R. 282-84). The judge agreed but

continued to order Ryan to attend the inpatient program

as a special condition of probation over defense objection.

(R. 283-84, 294-99).

24a

The judge remanded Ryan to begin serving the jail

portion of his sentence. (C.T. 886-88). Ryan moved for

supersedeas bond and reconsideration of his sentence the

following week. (R. 80-83). On March 17, Ryan’s ex-wife

addressed the court in support of that motion. (R. 306-19).

She explained that Ryan had been sober since his arrest,

and that his family was struggling without him home.

(R. 309-10).

The judge denied Ryan’s motion. (C.T. 314-17). The

judge cited Ryan’s counteroffer and her conclusion that

“[h]is testimony at trial was completely inconsistent with

the other witnesses” as support for the original sentence.

(C.T. 314-15). 2

2 At the sentencing hearing, one of the prosecutors stated

that Ryan had a federal conviction and a history of arrests

for disorderly intoxication, which did not result in

convictions. (C.T. 882). The judge responded: “Well, the

Court will not consider any priors as they have not been

presented to the Court. So the Court is basing the

sentence solely on the evidence presented.” (C.T. 883).

25a

The judge addressed Ryan’s ex-wife at the March 17

hearing as follows:

WIFE OF DEFENDANT: So, what am I going to do, Your

Honor? My family is -THE COURT:

You haven’t been -- you haven’t been

in Court. But I will tell you that

Mr. Ryan did have the opportunity to

go to a diversion program, where he

would have taken zero risk -- zero

risk. He would have had all the

charges dropped against him, if he

just would have complied with those

requirements. But he consciously

made a decision.

He thought about it, and he decided

that that was not the right thing for

him, knowing what the risks were. So,

I can’t -- it is --

WIFE OF DEFENDANT: This -- this is just -THE COURT:

What you’re asking for, is for everyone

else to compensate for the decision

that Mr. Ryan made, a decision that

he has every right to make.

I think you told me he was 58 years

old. This Court has to respect what

this gentleman, 58 years old, decided

and wanted for his life. That was what

was right for him, and he knew clearly

what the consequences were. And so

now it’s time for the consequences to

unfortunately, come to play.

(C.T. 315-16).

This timely appeal follows. (R. 83-85).

26a

SUMMARY OF THE ARGUMENT

First,

the

trial

court

erred

denying

Ryan’s

peremptory challenge to Juror 28, Pauline Smith. The law

presumes peremptory challenges to be exercised for nondiscriminatory reasons, and the opponent of a peremptory

strike carries a heavy burden of showing that the strike

was exercised based on a venireperson’s membership in a

protected class. Here, the state did not question the

genuineness of Ryan’s race and gender-neutral reason for

striking Juror Smith, but the judge nevertheless prevented

Ryan from exercising his peremptory challenge. Ryan is

entitled to a new trial because the trial judge’s finding of

pretext was unsupported by the record and there is

nothing

overcome

the

presumption

non-

discrimination.

Second, the court erred in denying Ryan’s motion to

empanel a twelve-person jury. From the time of the Magna

Carta to the adoption of the Constitution, the concept of a

trial by jury meant the unanimous verdict of twelve people.

The question of whether Florida’s use of six-person juries

27a

violates the Sixth Amendment is currently pending

certiorari in the United States Supreme Court.

Third, Ryan is entitled to resentencing by a new judge

because

the

judge’s

comments

indicate

judicial

vindictiveness. The judge interrogated Ryan about his

decision to reject the state’s plea offer, and the judge’s

comments to Ryan’s ex-wife at the March 17 hearing

expressly described his punishment as a consequence of

his decision to exercise this constitutional right. The

totality of the circumstances supports, at a minimum, a

presumption of vindictiveness that the state cannot rebut.

Finally, Ryan is also entitled to resentencing by a new

judge because the record raises a reasonable question as

to whether the trial judge sentenced him based on the

judge’s assessment that Ryan’s trial testimony was not

credible. The law is settled: a testifying defendant’s

truthfulness

constitutionally

sentencing factor.

impermissible

28a

ARGUMENT

The court erred in denying Ryan’s

peremptory challenge to Juror 28,

Pauline Smith. The challenge was

presumptively non-discriminatory, and

the record does not support the court’s

implicit finding that the strike was

motivated by the juror’s race and/or

gender.

In Melbourne v. State, 679 So.2d 759 (Fla. 1996), the

Florida Supreme Court established a three-step approach

for detecting and preventing peremptory strikes motivated

by a juror’s membership in a protected class, such as their

race or gender. In step 1, the opponent of the strike must

object, show the venireperson to be a member of a

protected class, and request the court to ask the striking

party its rationale for the strike. Id. In step 2, the court

must ask the proponent of the strike to come forward with

a race or gender-neutral reason. Id. If the proponent gives

a facially race or gender-neutral rationale, step 3 requires

the court to determine whether the explanation is genuine

or pretextual. Id.

29a

This case concerns step 3 of the Melbourne framework.

Here, as in Brannon v. State, 320 So. 3d 898 (Fla. 3d DCA

2021), the state demanded a race-neutral reason when the

appellant attempted to use a peremptory strike. See id. at

902-03. And, as in Brannon, the judge proceeded to

determine the genuineness of the proffered reason without

making an express finding that the proffered reason was

facially

non-discriminatory.

See

id.

Under

these

circumstances, the Court explained, “we assume that,

because the trial court reached the genuineness inquiry

(Melbourne’s step 3), that it determined – albeit implicitly

– that the proffered reason for the strike was race-neutral.”

Id. at 903.

This Court reviews a trial court’s finding of genuineness

or pretext under the abuse of discretion standard. Id. at

902. “Notwithstanding this deferential standard, however,

a trial court's determination that a strike is pretextual will

be reversed by the appellate court if there is no record

support for the trial court's finding.” Id.

30a

As this Court recently explained, the exercise of a

peremptory

challenge

presumptively

non-

discriminatory. Id. The party objecting to the strike “has ‘a

heavy burden to show’ that the peremptory strike is being

sought solely because of the potential juror’s race.” Id. at

903 (quoting Hamdeh v. State, 762 So. 2d 1030 (Fla. 3d

DCA 2000). “[F]actors relevant to this determination

include the racial make-up of the venire, prior strikes

exercised against the same racial group, and singling out

the challenged juror for special treatment.” Id.

There are no meaningful distinctions between the facts

of this case and Brannon, 320 So. 3d 898 (Fla. 3d DCA

2021). There, the appellant exercised one peremptory

strike against a Hispanic male member of the venire, but

there was no record evidence that the first strike was

racially motivated. Id. at 903. When Brannon sought to

use his second peremptory challenge, the state noted that

Brannon was attempting to strike a second Hispanic male

venireperson, and the judge ruled that his race-neutral

reason for the strike was pretextual. Id. The challenged

31a

juror was seated, the jury convicted Brannon, and he

appealed. Id. at 901.

This Court reversed, explaining:

After Brannon proffered his race-neutral reason

for the strike, despite the State's “heavy burden”

to establish a discriminatory intent behind the

strike, the trial court neither asked the State for

argument regarding the genuineness of the

proffered reason, nor did the trial court

articulate a rationale for its genuineness

determination. While this Court has made it

clear that Melbourne does not require a trial

court to expressly articulate its thought process

in making a genuineness determination, our

case law does require the record to support the

trial court's genuineness determination.

Brannon v. State, 320 So. 3d 898, 903 (Fla. 3d DCA 2021).

This case presents the same issue. When Ryan sought

to use his peremptory challenge against Juror 28, Pauline

Smith,

the

state

requested

“race

and

gender-

neutral. . . reason.” (C.T. 278). The state made the same

request

when

Officer Brown.

Ryan

(C.T. 275).

peremptorily

However,

the

challenged

state

never

questioned the genuineness of Ryan’s race and genderneutral reasons for striking either juror. (C.T. 275-82). See

also State v. Johnson, 295 So. 3d 710, 714 (Fla. 2020) (“It

32a

is the objecting party's obligation to place the trial court

on notice of the basis for the challenge and create a record

supporting that objection.”).

While the record establishes that Ryan attempted to

use both of his peremptory strikes to remove female jurors,

there is no indication that those challenges were motivated

by gender. The judge expressly found that Ryan’s proffered

reason for striking Officer Brown was genuine. (C.T. 275).

Moreover, four of the six jurors to decide Ryan’s case

were women. (C.T. 120, 144, 158-59, 286). Ryan accepted

two of the women chosen for his jury—Lakisha Nicole Cash

and Nicketris Simmon Mandela—without any hesitation.

(C.T. 275, 277). And while Ryan lodged an unsuccessful

cause challenge against juror Irene Zapata, who expressed

concern about going into “critical condition” if she missed

a doctor’s appointment scheduled for the day after jury

selection, (C.T. 169), Ryan did not attempt to use a

peremptory challenge on Zapata. (C.T. 241-45). There is

simply no indication of gender-based discrimination.

33a

The record does not support a finding that Ryan’s

peremptory challenge to Smith was racially motivated,

either. While the judge noted that Smith was black, the

record is silent about the racial make-up of the venire.

(C.T. 73-287).

Under

these

circumstances,

the

presumption of non-discrimination controls. See Brannon,

320 So. 3d at 903 (“[T]here is no record evidence that

Brannon tried to exercise strikes against any other

Hispanic venirepersons. This, coupled with the absence of

any evidence regarding the racial make-up of the venire,

makes it impossible for us to find the necessary support

in the record to uphold the trial court's genuineness

finding.”).

Ryan is entitled to a new trial. Brannon, 320 So. 3d 898

(Fla. 3d DCA 2021).

34a

II.

The court erred in denying Ryan’s

motion to empanel a twelve-person

jury.

Our constitutions guarantee the right to trial by jury

when the charge is a “serious offense.” See Duncan v.

Louisiana, 391 U.S. 145 (1968) U.S. Const. Amend. VI; Art.

I, § 9, Fla. Const. “[S]erious offenses” are crimes that (1)

were indictable at common law, (2) involve moral

turpitude, (3) are categorized as “malum in se”, or (4) carry

a maximum penalty of more than six months in prison.

See Whirley v. State, 450 So. 2d 836, 838 (Fla. 1984).

From the time of the Magna Carta to the adoption of

the Constitution, the concept of a trial by jury meant the

unanimous verdict of twelve people. See Ramos v.

Louisiana, 140 S.Ct. 1390, 1396 (2020) (citing 4 W.

Blackstone, Commentaries on the Laws of England 343

(1769)); Thompson v. Utah, 170 U.S. 343, 349 (1898).

“[T]he jury referred to in the original Constitution and in

the Sixth Amendment is a jury constituted, as it was at

common law, of twelve persons, neither more nor less.”

Thompson at 350 (1898).

35a

The Florida Supreme Court has recognized that the

“right to trial by jury” means “a jury, according to the

common law, to be composed of twelve persons.” Gibson v.

State, 16 Fla. 291, 300 (1877).3 But in 1875, the Florida

constitution was amended to add: “The number of jurors

for the trial of causes in any court may be fixed by law.”

Id. In 1877, the Legislature enacted chapter 3010,

providing: “Twelve men shall constitute a jury to try all

capital cases, and six men shall constitute a jury to try all

other offenses prosecuted by indictment.” Ch. 3010, § 6,

Laws of Fla. (1877). In light of the amendment and

legislation, the court held that a six-person jury did not

violate the Florida constitution. Gibson at 300.

The United States Supreme continued to hold that the

jury guaranteed by the Sixth Amendment is a jury of

twelve. After Thompson, the Supreme Court went on to

reaffirm this principal time and again. See Capital Traction

Co. v. Hof, 174 U.S. 1, 13 (1899) (trial by jury “in the

See also, Florida Fertilizer & Mfg. Co. v. Boswell, 34

So. 241 (Fla. 1903).

36a

primary and usual sense of the term at the common law

and in the American constitutions, is. . . a trial by a jury

of twelve”); Maxwell v. Dow, 176 U.S. 581, 586 (1900)

(“That a jury composed, as at common law, of twelve jurors

was intended by the Sixth Amendment to the Federal

Constitution, there can be no doubt.”); In Patton v. United

States, 281 U.S. 276, 292 (1930), the court wrote that, “To

uphold the voluntary reduction of a jury from twelve to

eleven upon the ground that the reduction—though it

destroys the jury of the Constitution—is only a slight

reduction, is not to interpret that instrument, but to

disregard it.”

The Supreme Court abruptly abandoned this history in

1970 when it approved the use of a six-person jury in

Williams v. Florida, 399 U.S. 78 (1970). The court admitted

that at the time the Constitution was adopted, “It may well

be that the usual expectation was that the jury would

consist of 12.” Id. at 98. It nevertheless determined that

requirement that a jury would be composed of twelve

37a

people is “a historical accident” devoid of significance,

“except to mystics.” Id. at 102.

The court concluded that the essential function of the

jury could be met by as few as six jurors. Id., 98-100. To

do so, “the number should probably be large enough to

promote group deliberation, free from outside attempts at

intimidation, and to provide a fair possibility for obtaining

a representatives cross-section of the community.” Id. at

100. It believed six jurors were sufficient to accomplish

this. The court pointed to studies it believed showed that

the size of a jury did not affect the results of its

deliberations. Id. at 100 n.49.

Two years later, the court relied on Williams to dispense

with the requirement that a jury be unanimous:

In Williams v. Florida, 399 U.S. 78, 90 S.Ct.

1893, 26 L.Ed.2d 446 (1970), we had occasion

to consider a related issue: whether the Sixth

Amendment's right to trial by jury requires that

all juries consist of 12 men. After considering

the history of the 12-man requirement and the

functions it performs in contemporary society,

we concluded that it was not of constitutional

stature. We reach the same conclusion today

with regard to the requirement of unanimity.

38a

See Apodaca v. Oregon, 406 U.S. 404, 406 (1972)

(plurality opinion). Apodaca simply “built on the analysis

in Williams.” See Ramos, 140 S.Ct. at 1433 (Alito, J.,

dissenting). Following Williams, the court held that the

proper inquiry, “must focus upon the function served by

the jury in contemporary society.” Williams at 410.

In Ramos, the Supreme Court returned to the original

meaning of the right to jury trial, repudiating Apodaca.

The court explained that Apodaca erred by “subject[ing]

the Constitution’s jury trial right to an incomplete

functionalist analysis of its own creation” rather than

“grappling with the historical meaning of the Sixth

Amendment’s jury trial right.” 140 S. Ct. at 1405.

Ramos pulled the rug out from under the court’s

reasoning in Williams. If Williams’ functionalist analysis no

longer supports a rejection of the original public meaning

of “jury” as to unanimity, it cannot support it as to number

either. “At a minimum, Ramos—which relied on the

original meaning of the Sixth Amendment rather than an

analysis of the jury's role in contemporary society—

39a

suggests that Williams was wrongly decided.” Guzman v.

State, 350 So. 3d 72 (Fla. 4th DCA 2022) (Gross, J.,

concurring), review denied, SC2022-1597, 2023 WL

3830251 (Fla. June 6, 2023); see also Phillips v. State, 316

So. 3d 779 (Fla. 1st DCA 2021) (Makar, J., concurring),

review denied, SC21-788, 2021 WL 3077438 (Fla. July 21,

2021), and cert. denied sub nom. Phillips v. Florida, 211 L.

Ed. 2d 406 (2021).

Even if Williams’ functionalist approach survived

Ramos, it would fail its own test. Empirical data show that

“12-member juries deliberate longer, recall information

better, and pay greater attention to dissenting voices.” See

Khorrami v. Arizona, 21-1553, 143 S.Ct. 22, 23-27 (U.S.

Nov. 7, 2022) ((Gorsuch, J., dissenting from denial of

certiorari) (citing M. Saks & M. Marti, A Meta-Analysis of

the Effects of Jury Size, 21 Law & Hum. Behav. 451, 455–

466 (1997)). And twelve-person juries are more likely to

achieve a fair cross-section of the community. See Ballew

v. Georgia, 435 U.S. 223, 236-37 (1978); S. Diamond, et

al., Achieving Diversity on the Jury: Jury Size and the

40a

Peremptory Challenge, 6 J. Empirical Legal Studies 425,

442 (2009).

The Appellant recognizes that other district courts have

rejected that twelve-person juries violate the meaning of

the Sixth Amendment restored by Ramos. See, e.g.,

Guzman, supra; Phillips, supra; Brown v. State, 359 So. 3d

408 (Fla. 1st DCA 2023), reh'g denied (Apr. 12, 2023);

Simpson v. State, 48 Fla. L. Weekly D1541 (Fla. 5th DCA

Aug. 4, 2023). This Court has not addressed the effect of

Ramos, but it has previously held that a jury of six does

not violate the constitution. Jimenez v. State, 167 So. 3d

497 (Fla. 3d DCA 2015).

This issue is now pending certiorari in the United

States Supreme Court. See Guzman v. Florida, No. 235173 (Jul 17, 2023); Cunningham v. Florida, No. 23-5171

(Jul 21, 2023).

41a

III.

Ryan’s sentence

vindictive.

presumptively

The Due Process Clause of the Fourteenth Amendment

forbids judicial vindictiveness in sentencing. See Wilson v.

State, 845 So. 2d 142, 148 (Fla. 2003), citing North

Carolina v. Pearce, 395 U.S. 711 (1969). As this Court has

explained, “[t]he sentencing term ‘vindictive’ has become a

‘term of art,’ describing the legal effect of a given objective

course of action, generally not implying any personal or

subjective animosity on the part of the trial judge.” Blanco

v. State, 849 So. 2d 381 (Fla. 3d DCA 2003). Vindictive

sentencing occurs when a judge holds a defendant’s

insistence on going to trial against the defendant in

sentencing. Brandful v. State, 858 So. 2d 367, 369-70

(Fla. 3d DCA 2003).

“[I]mposition of a vindictive sentence is fundamental

error that may be raised for the first time on appeal.” Ryan

v. State, 311 So. 3d 276, 278 (Fla. 2d DCA 2020). “The

issue of whether a defendant's sentence is vindictive is a

question of law subject to de novo review.” Simplice v.

42a

State, 134 So. 3d 555, 556 (Fla. 5th DCA 2014). If the

totality of the circumstances creates a presumption of

vindictiveness, the state must dispel that presumption

with record evidence. See id. Otherwise, the appellant is

entitled to resentencing by a different judge. Wilson, 845

So. 2d at 159.

When a judge participates in plea negotiations and then

imposes a harsher sentence after trial, appellate courts

ask “whether there is a ‘reasonable likelihood’ that [a]

harsher sentence was imposed in retaliation for the

defendant not pleading guilty and instead exercising his or

her right to proceed to trial.” Wilson v. State, 845 So. 2d

142, 156 (Fla. 2003). The Florida Supreme Court has

explained:

The other factors that should be considered

include but are not limited to: (1) whether the

trial judge initiated the plea discussions with

the defendant in violation of [State v.] Warner],

762 So.2d 507 (Fla.2000)]; (2) whether the trial

judge, through his or her comments on the

record, appears to have departed from his or her

role as an impartial arbiter by either urging the

defendant to accept a plea, or by implying or

stating that the sentence imposed would hinge

on future procedural choices, such as

43a

exercising the right to trial; (3) the disparity

between the plea offer and the ultimate

sentence imposed; and (4) the lack of any facts

on the record that explain the reason for the

increased sentence other than that the

defendant exercised his or her right to a trial or

hearing.

Wilson v. State, 951 So. 2d 1039, 1040–41 (Fla. 3d DCA

2007).

This case warrants a presumption of vindictiveness. On

the morning of jury selection, the judge directly addressed

Ryan and interrogated him about his decision to exercise

his constitutional right to trial. (C.T. 6-9). The judge was

clearly irked by Ryan’s insistence on going to trial.

The judge also described the plea offer that Ryan

previously rejected as “0 risk,” and asked him if avoiding

the conditions of that offer was “worth 1 day in jail to you.”

(C.T. 7-8). By becoming an advocate for the plea offer, the

judge abandoned her role as neutral arbiter, and her

decision to do so supports a presumption of vindictiveness

as well. See Wilson v. State, 951 So. 2d 1039 (Fla. 3d DCA

2007) (granting a presumption of vindictiveness where the

44a

judge’s comments could only be understood as an attempt

to urge the defendant to take a plea offer).

Further, there is a significant disparity between the

plea offer and the sentence imposed. As the judge noted,

the plea offer would not have required Ryan to spend any

time in custody. After the jury acquitted Ryan of his most

serious charge, the judge imposed the maximum term of

probation for each of Ryan’s misdemeanor convictions.

The judge also imposed onerous special conditions of

probation, requiring Ryan to serve almost three months in

the county jail and to complete an inpatient drug and

alcohol treatment program. (C.T. 879-88).

Finally, the record does not establish a persuasive

rationale for the harsher sentence beyond the fact that

Ryan exercised his right to trial by jury. 4 One week after

sentencing, when the judge addressed Ryan’s ex-wife at

the hearing on Ryan’s motion for supersedeas bond and

The judge expressly disavowed any reliance on the

prosecutor’s representation that Ryan had a prior federal

conviction. (C.T. 881-88).

45a

reconsideration of his sentence, the judge expressly cited

Ryan’s rejection of the plea offer as her rationale for

keeping him in jail:

WIFE OF DEFENDANT: So, what am I going to do, Your

Honor? My family is -THE COURT:

You haven’t been -- you haven’t

been in Court. But I will tell you

that Mr. Ryan did have the

opportunity to go to a diversion

program, where he would have

taken zero risk -- zero risk. He

would have had all the charges

dropped against him, if he just

would have complied with those

requirements. But he consciously

made a decision.

He thought about it, and he

decided that that was not the right

thing for him, knowing what the

risks were. So, I can’t -- it is --

WIFE OF DEFENDANT: This -- this is just -THE COURT:

What you’re asking for, is for

everyone else to compensate for the

decision that Mr. Ryan made, a

decision that he has every right to

make.

I think you told me he was 58 years

old. This Court has to respect what

this gentleman, 58 years old,

decided and wanted for his life.

That was what was right for him,

and he knew clearly what the

consequences were. And so now it’s

46a

time for the consequences

unfortunately, come to play.

This dialog indicates actual vindictiveness. The judge

expressly framed Ryan’s incarceration as his consequence

for making “a decision that he has every right to make”—

meaning his decision to go to trial—rather than his

decisions at Publix on the night of his arrest. (C.T. 31516). See Brandful v. State, 858 So. 2d 367 (Fla. 3d DCA

2003) (holding that a sentence was presumptively

vindictive where, “[i]n imposing the sentences, the trial

court mentioned the fact that the defendant had turned

down a favorable plea offer and had insisted on going to

trial.”).

The record in this case creates a presumption of

vindictiveness that the state cannot rebut. Ryan is entitled

to resentencing by a different judge. See Wilson, 845

So. 2d 142 (Fla. 2003) (“[I]n cases where an unrebutted

presumption of judicial vindictiveness arises, we conclude

that the appropriate remedy is resentencing before a

different judge.”).

47a

IV.

The court also fundamentally erred by

sentencing

Ryan

based

her

incredulity

about

Ryan’s

trial

testimony.

Sentencing judges fundamentally err when they

consider

constitutionally

impermissible

sentencing

factors. Kimbrough v. State, 300 So. 3d 1234, 1235

(Fla. 3d DCA 2020). If the record raises a reasonable

question

whether

the

judge

relied

constitutionally improper sentencing factor, this Court

must vacate the sentence and remand for resentencing

before a different judge. Id. at 1235.

A testifying defendant’s truthfulness is an improper

sentencing factor. See Williams v. State, 164 So. 3d 739

(Fla. 2d DCA 2015) (collecting cases). See also Diaz v.

State, 106 So. 3d 515, 516 (Fla. 2d DCA 2013) (“Here, the

trial court’s statements indicate that it improperly

considered Diaz’s truthfulness. Therefore, we remand for

resentencing before a different judge.”).

Here, the transcript of the post-trial hearing on March

17th suggests that the trial judge improperly sentenced

48a

Ryan based on her belief that Ryan did not testify

truthfully at trial. The judge expressly cited her conclusion

that

“[Ryan’s]

testimony

trial

was

completely

inconsistent with the other witnesses” as a basis for jailing

him and denying supersedeas bond. (C.T. 314-15).

Hampton v. State, 178 So. 3d 921 (Fla. 5th DCA 2015)

is instructive. There—like here—the sentencing judge

commented on a conflict she perceived between the

defendant’s in-court testimony and his prior sworn

testimony. Id. The judge cited Hampton’s apparent perjury

as a basis for sentencing him to 20 years’ imprisonment

instead of 15 years. Id. at 922. Hampton’s trial and

appellate attorneys did not challenge this comment, and

the Fifth DCA affirmed his conviction and sentence on

direct appeal. Id.

Hampton subsequently petitioned the Fifth DCA for

habeas relief. Id. He argued that his appellate counsel was

ineffective for failing to argue that the trial court

fundamentally erred in considering the truthfulness of his

testimony as a sentencing factor. Id. The appellate court

49a

agreed, holding that Hampton was entitled to resentencing

by a new judge. Id. at 923.

The judge’s similar comments in this case raise a

reasonable question as to whether she improperly

considered Ryan’s truthfulness when pronouncing his

sentence. (C.T. 314-15). This Court must therefore reverse

and remand for resentencing by a new judge. See

Kimbrough, 300 So. 3d at 1235.

50a

CONCLUSION

The Court should reverse and remand for a new trial.

In the alternative, the Court should reverse and remand

for resentencing by a new judge.

Respectfully submitted,

CARLOS J. MARTINEZ

Public Defender

Eleventh Judicial Circuit

of Florida

1320 N.W. 14th Street

Miami, Florida 33125

305.545.1961

BY: /s/ Nicholas Lynch

NICHOLAS LYNCH

Assistant Public Defender

NAL@pdmiami.com

/s/ Andrew Stanton

ANDREW STANTON

Assistant Public Defender

astanton@pdmiami.com

51a

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing was served electronically to counsel for the State,

office of the Attorney General, One SE 3rd Ave, Suite 900,

Miami, Florida 33131, crimappmia@myfloridalegal.com

this 2nd day of October 2023.

BY: /s/ Nicholas Lynch

NICHOLAS LYNCH

Assistant Public Defender

CERTIFICATE OF COMPLIANCE

I certify that this Initial Brief complies with the word

count and font requirements of Florida Rules of Appellate

Procedure.

BY: /s/ Nicholas Lynch

NICHOLAS LYNCH

Assistant Public Defender

52a

Appendix C

CRIMINAL

DIVISION

JUDGMENT

THE STATE OF FLORIDA

PLAINTIFF

CASE NUMBER:

CLOCK IN

: 3.

153

vs.

DAVID PHILLIP RYAN

DEFENDANT

F21020316

;

745

' Iii

753

.._

9%th "HMO

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MlAMl-DADE COUNTY, FLORIDA

080338 30:} GHTH

53a

David P Ryan, David Philip Ryan

The Defendant. DAVID PHILLIP RYAN, being personally before this Coun represented by NATALIE TEMME, APD

and ADAM PETERS, APD, his/her attorneys of record.

The State represented by LAUREN J GUTIERREZ and JANEEN ZAMORA, Assistants State's Attorney, and

having:

~ been tried and found guilty

- DNA not taken

to the following crime(s):

;

COUNT

CRIME

' H

DEGREE

V , , ,.

RESISTING OFFICER WITHOUT VIOLENCE TO HIS PERSON

TRESPASS/PROP orr STRUC/CONVEY/DEFY ORDER TO LEAVE

1/M

OFFENSE

STATUTE NO.

843.02

810.09(2)(B)

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 crime(s).

ITISF RTH R

RDE

A DA

E that:

The defendant is placed on PROBATION in a separate Order entered herein.

REV 10/02 FB 03/10/23 F8 03/13/23 AWP 03/13/23

Page 1 of 3

Clerk's web address: www.miami-dadeclerk.com

54a

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MlAMl-DADE COUNTY, FLORIDA

CRIMINAL

DIVISION

CASE NUMBER: F21020316

CHARGESICOSTS/FEES

THE STATE OF FLORIDA

PLAINTIFF

VS.

DAVID PHILLIP RYAN

DEFENDANT

David P Ryan, David Philip Ryan

The Defendant is hereby ordered to pay the following sum indicated:

$50.00

Pursuant to Florida Statute 938.03(4) (Crimes Compensation Trust Fund).

Three dollars as a court cost pursuant to Florida Statute 938.01 (1) $3.00 (Criminal Justice

Trust & Education Funds).

Pursuant to Florida Statute 2752(2) (Public Defender Application Fee).

$3.00

Pursuant to Florida Statute 938.19 (Teen Courts).

$50.00

$3.00

$20.00

$2.00

$50.00

Pursuant to Florida Statute 93806 (Crime Stopper s Programs).

Pursuant to Florida Statute 775.083(2) (Crime Prevention Programs).

Two dollars as a court cost pursuant to Florida Statute 938.15 $2.00 (Criminal Justice Trust

& Education Funds).

Cost of prosecution Florida Statute 938.27(8)

$60. 00

Additional cost fine and forfeiture Florida Statute 938.05

$308.00

TOTAL

$50.00

STAY DUE DATE:

Cost of defense Florida Statute 938.29

3/9/2024

DONE AND ORDERED in Open Court in Miami Dade County, Florida this 8th day of March, 2023.

MMC

JUDGE MAVEL RUIZ

Page 2 of 3

DIV. F605

Clerk's web address: www.miami-dadeclerk.com

55a

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMl-DADE COUNTY. FLORIDA.

D( IN THE COUNTY COURT IN AND FOR MIAMl-DADE COUNTY, FLORIDA

DIVISION

1:) CRIMINAL

1:: OTHER

THE STATE OF FLORIDA

FINGERPRINTS OF DEFENDANT

VS.

PLAINTIFF

CASE NUMBER:37L .2? /

DEFENDANT

WM / Q

FINGERPRINTS OF DEFENDANT

2. R. Index

3. R.Midd1e

4. R. Ring

5. R. Little

5. L. Little

I hereby certify that the foregoing ngerprints on this judgment are the ngerprints of the defendant named above, and that they

were placed thereon by said defen nt in my presence, in open court, on this date.

Fingerprints taken by:

A /

Signatur4/

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Title 00

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56a

Appendix D

David Ryan

57a

March 06, 2023

Page 36

·1· · · ·peers, what?

·2· · · · · · MS. TEMME:· Yes, Judge.· This is a motion

·3· · · ·requesting 12 jurors for Mr. Ryan's trial pursuant

·4· · · ·to The United States Constitution.· In the spirit

·5· · · ·of The United States Constitution -·6· · · · · · THE COURT:· Okay.

·7· · · · · · MS. TEMME:· -- it's our position that The

·8· · · ·Constitution intended that all trials that are the

·9· · · ·felony level of a serious crime -10· · · · · · THE COURT:· You're citing The Magna Carta.

11· · · · · · MS. TEMME:· Yes, Judge, as that goes towards

12· · · ·the tradition and the history of the inception of

13· · · ·our own binding governmental documents.

14· · · · · · THE COURT:· Okay.· All right.· State, your

15· · · ·response?

16· · · · · · MS. GUTIERREZ:· Judge, just a moment.· When

17· · · ·was this motion filed?

18· · · · · · THE COURT:· It was filed.

19· · · · · · MS. TEMME:· It was all this morning.

20· · · · · · THE COURT:· Ms. Temme works on Sundays.

21· · · · · · MS. GUTIERREZ:· Well, no, understandable.

22· · · ·just -- I did not have a chance to previously

23· · · ·review this motion.

24· · · · · · THE COURT:· Respectfully, it's denied.

25· · · · · · MS. TEMME:· It's an ad -- it's an additional

Laws Reporting, Inc.· · 305.358.2700

schedule@lawsreporting.com· ·www.lawsreporting.com

C.T. 36

YVer1f

David Ryan

58a

March 06, 2023

Page 37

·1· · · ·motion in limine, Judge.

·2· · · · · · THE COURT:· It's denied.

·3· · · · · · MS. TEMME:· Okay.

·4· · · · · · THE COURT:· We'll go forward with the six

·5· · · ·jurors.

·6· · · · · · MS. TEMME:· And that's over Defense objection

·7· · · ·for the record.

·8· · · · · · THE COURT:· All right.· Thank you.· Now,

·9· · · ·Defense motion in limine.· One, the Defense invokes

10· · · ·the rule of sequestration from this point on.· The

11· · · ·rule has been invoked.· Number two, the State of

12· · · ·Florida shall not refer to Defense counsel as

13· · · ·Public Defenders.· Is that stipulated?

14· · · · · · MS. GUTIERREZ:· Yes, Judge.

15· · · · · · THE COURT:· Is number one stipulated?

16· · · · · · MS. GUTIERREZ:· Yes, Judge.

17· · · · · · THE COURT:· Number three, the State shall be

18· · · ·precluded from presenting evidence or eliciting any

19· · · ·testimony concerning any uncharged crimes or prior

20· · · ·bad acts.· Stipulated?

21· · · · · · MS. GUTIERREZ:· It's enumerated, I believe, in

22· · · ·the next page, Your Honor.

23· · · · · · THE COURT:· All right.· Any allegation of

24· · · ·public intoxication?

25· · · · · · MS. GUTIERREZ:· Yes, Your Honor.· The State's

Laws Reporting, Inc.· · 305.358.2700

schedule@lawsreporting.com· ·www.lawsreporting.com

C.T. 37

YVer1f

59a

Appendix E

60a

FILED

MM :9 5 2023

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF P JORIDA

DAD

IN AND FOR MIAMI

COUNTY

CLERK

CASE NO.: F21020316

SECTION: F003

JUDGE:

MAVEL RUIZ

THE STATE OF FLORIDA

Plaintiff,

DAVID PHILLIP RYAN

Defendant.

MOTION TO GUARANTEE THE DEFENDANT'SVCONSTITUTIONAL RIGHT

TO A JURY OF TWELVE PEERS AND NOTICE OF HEARING

THE DEFENDANT, David Phillip Ryan, pursuant to the Sixth and Fourteenth

Amendments and Article 1, Sections 9 and 16 of the Florida Constitution, moves this Court to

safeguard his right to trial by a jury of twelve peers. In support of this motion, ML/Ms. Ryan

states:

David Phillip Ryan stands before the court accused of battery on a law

enforcement of cer, resisting an of cer without Violence to his person, trespass on a property

other than a structure/conveyance, a felony. If convicted, David Phillip Ryan faces up to 5 years

state prison followed by 364 days in county jail followed by 364 days in county jail years in

prison.

Our constitution guarantees the right to trial by jury when the charge(s) is a

"serious offense." See Duncan v. Louisiana, 391 US. 145 (1968) US. Const. Amend. VI; Art. I,

§ 9, Fla. Const. "[S]erious offenses" are crimes that (1) were indietable at common law, (2)

involve moral turpitude, (3) are categorized as ,"malum in se", or (4) carry a maximum penalty of

more than six months in prison. See Whirley v. State, 450 So. 2d 836, 838 (Fla. 1984).

From the time of the Magna Carta to the adoption of the Constitution, the concept

of a trial by jury meant the unanimous verdict of twelve people. See Ramos v. Louisiana, 140

S.Ct. 1390, 1396 (2020) (citing 4 W. Blackstone, Commentaries on the Laws of England 343

(1769)); Thompson v. Utah, 170 US. 343, 349 (1898). "[T]he jury referred to in the origi

$25

61a

Constitution and in the Sixth Amendment is a jury constituted, as lit was at common law, of

twelve persons, neither more nor less." Thompson at 350 (1898). V

After Thampson, the Supreme Court went on to reaf rm this principal time and again.

See Capital Traction C0. V. Ho

174 U.S. l, 13 (1899) (trial by jury in the primary and usual sense of

the term at the common law and in the American constitutions, is

a tirial by a jury of twelve ); Maxwell

v. Dow, 176 U.S. 581, 586 (1900) ( That a jury composed, as at common law, of twelve jurors was

intended by the Sixth Amendment to the Federal Constitution, there can be no doubt ); In Patton v.

United States, 281 U.S. 276, 292 (1930), the court wrote that, To uphold the voluntary reduction of a

jury from twelve to eleven upon the ground that the reduction thoughlf it destroys the jury of the

Constitution is only a slight reduction, is not to interpret that instrument, but to disregard it.

The Supreme Court abruptly abandoned this history in 1970 When it approved the use of

a six person jury in Williams v. Florida, 399 U.S. 78 (1970). The court admitted that at the time the

Constitution was adopted, It may well be that the usual expectation was that the jury would consist of

12. Id. at 98. It nevertheless determined that requirement that a jury would be composed of twelve

people is a historical accident devoid of signi cance, except to mystics. Id. at 102.

The court concluded that the essential function of the jury could be met by as few as six

jurors. 1d,, 98-100. To do so, the number should probably be large enough to promote group

deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a

representatives cross-section of the community. Id. at 100. It believed lsix jurors were suf cient to

accomplish this. The court pointed to studies it believed showed that the size of a jury did not affect the

results of its deliberations. Id. at 100 n.49.

be unanimous:

Two years later, the court relied on Williams to dispense with the requirement that a jury

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 LE d.2d 446 (1970), we

had occasion to consider a related issue: whether the Sixth Amendment's right to

trial by jury requires that all juries consist of 12 men. After considering the history

of the 12-man requirement and the functions it performs in contemporary society,

we concluded that it was not of constitutional stature. We reach the same

conclusion today with regard to the requirement of unanimity.

See Apodaca v. Oregon, 406 U.S. 404, 406 (1972) (plurality opinion). Apodaca simply built on

the analysis in Williams. See Ramos, 140 S.Ct. at 1433 (Alito, J. dissenting). Following

Williams, the court held that the proper inquiry, must focus upon the function served by the jury

in contemporary society. Williams at 410.

62a

In Ramos, the Supreme Court returned to the original meaning of the right to jury trial,

repudiating Apodaca. The court explained that Apodaca erred by subject[ing] the Constitution s jury

trial right to an incomplete functionalist analysis of its own creation rather than grappling with the

historical meaning of the Sixth Amendment s jury trial right. 140 S. Ct. at 1405.

Ramos pulled the rug out from under the court s reasoning in Williams. If Williams

functionalist analysis no longer supports a rejection of the original public meaning of jury as to

unanimity, it cannot support it as to number either. At a minimum, Ramos which relied on the original

meaning of the Sixth Amendment rather than an analysis of the jury's role in contemporary

society suggests that Williams was wrongly decided. Guzman v. State, 47 Fla. L. Weekly D2154 (Fla.

4th DCA Oct. 26, 2022) (Gross, J., concurring); see also Phillips v. State, 316 So. 3d 779 (Fla. lst DCA

2021), review denied, SC21-788, 2021 WL 3077438 (Fla. July 21, 2021), and cert. denied sub nom.

Jonathan Phillips v. Florida, 211 L. Ed. 2d 406 (2021).

10.

Even if Williams functionalist approach survived Ramos, it would fail its own test.

Empirical data show that 12-member juries deliberate longer, recall information better, and pay greater

attention to dissenting voices. See Khorrami v. Arizona, 21-1553, 2022 WL 16726030 (U.S. Nov. 7,

2022) ((Gorsuch, J., dissenting from denial of certiorari) (citing M. Saks & M. Matti, A Meta-Analysis of

the E ects ofJury Size, 21 Law & Hum. Behav. 451, 455 466 (1997)). And twelve-person juries are

more likely to achieve a fair cross section of the community. See Ballew v. Georgia, 435 U.S. 223,

23 6-37 (1978); S. Diamond, et al., Achieving Diversity on the Jury: Jury Size and the Peremptory

Challenge, 6 J. Empirical Legal Studies 425, 442 (2009).

11.

This case is not controlled by Guzman. Guzman failed to object to a six-person

jury and instead raised the issue for the rst time on appeal. Consequently, the issue was not

preserved. See Gordon v. State, 47 Fla. L. Weekly 8227 (Fla. Sept. 1, 2022) (preservation

requires a timely objection stating the speci c legal grounds to be raised on appeal). The district

court only addressed the twelve-person jury issue, Assuming for the sake of argument that we

may consider this issue despite Guzman s failure to raise it below ... This counterfactual did not

address the issue now before the Court.

12.

David Phillip Ryan is entitled to what the Founders enshrined in the constitution:

a jury of twelve peers.

WHEREFORE, David Phillip Ryan moves this Court to honor his right to a jury of

twelve peers.

63a

PLEASE TAKE NOTICE that on March 06, 2023 at 09:30 AM, before the Honorable

Mavel Ruiz, in courtroom 2-10, at the Richard E. Gerstein Justicei Building, 1351 NW 12th

Street, Miami, Florida 33125, the Defendant will call up for hearing the aforementioned

MOTION TO GUARANTEE THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A

JURY OF TWELVE PEERS.

I CERTIFY that a copy of this Motion has been hand-delivered to and/or eServed upon

the Of ce of the State Attorney, 1350 NW 12th Avenue, Miami, Florida 33136 on March 06,

2023.

Respectfully submitted,

, , Carlos J; Mattinez

Public Defender

Eleventh Judicial Circuit of Florida

1320 NW 14th Street

. Miami: Florida 33125

305.545.1600

eSerVice email: FelonySerVice@pdmiami.com

/s/ Natalie N Temme

Assistant Public Defender

Florida Bar No.: 103 0995

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.