Petition for Writ of Certiorari — Naftali Dominguez Zenon, Petitioner v. Florida

Supreme Court briefMar 26, 2024

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IN THE SUPREME COURT OF THE UNITED STATES

NAFTALI DOMINGUEZ ZENON, PETITIONER

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Benjamin Hunter Eisenberg

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

beisenberg@pd15.state.fl.us

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NEFTALI DOMINGUEZ ZENON,

Appellant,

STATE OF FLORIDA,

Appellee.

No. 4D2022-1092

[January 10, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No.

502020CF004944AMB.

Carey Haughwout, Public Defender, and Cynthia L. Anderson,

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia,

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Neftali Dominguez Zenon appeals his conviction and life sentence. We

affirm without discussion in part and reverse in part. We reverse on two

issues.

First, the circuit court’s written cost order included a $200 cost of

prosecution pursuant to section 938.27, Florida Statutes (2022), and $100

operating trust fund pursuant to section 938.055, Florida Statutes (2022).

The State concedes that the record does not contain sufficient findings to

justify the $200 in prosecution costs and also concedes that the $100

discretionary cost must be reversed. We agree and reverse the imposition

of the $200 cost of prosecution and $100 discretionary operating trust

fund cost. See, e.g., Bartolone v. State, 327 So. 3d 331, 335–36 (Fla. 4th

DCA 2021). On remand, the circuit court is permitted to reimpose the

$200 cost of prosecution if the State submits “sufficient proof of higher

costs incurred. Id. at 335.

FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK 01/10/2024 10:04 AM

Second, the circuit court orally sentenced Zenon to mandatory life

without parole on count one and time served on count two. The written

judgment reflects both convictions. But only one written sentencing order

exists in the record for count one. That sentencing order specifies count

one is to run concurrently to count two. On remand, the circuit court shall

enter a written sentencing order that conforms to the oral pronouncement.

See Moreland v. State, 853 So. 2d 574, 575 (Fla. 4th DCA 2003) (remanding

for the trial court to correct the sentencing order to reflect its oral

pronouncement).

Affirmed in part, reversed in part, and remanded.

KLINGENSMITH, C.J., FORST and KUNTZ, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401

February 14, 2024

Neftali Dominguez Zenon,

Appellant(s)

CASE NO. - 4D2022-1092

L.T. No. - 502020CF004944AMB

State of Florida,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's January 16, 2024 motion for written opinion is denied.

Served:

Cynthia Lorraine Anderson

Attorney General-W.P.B.

Christine C. Geraghty

Palm Beach Public Defender

Malik Ramelize

Pablo Ignacio Tapia

I HEREBY CERTIFY that the foregoing is a true copy of the court’s order.

4D2022-1092 February 14, 2024

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2022-1092 February 14, 2024

Dominguez Zenon was entitled to a twelve person jury

under the sixth and fourteenth amendments and he did

not waive that right.

Dominguez Zenon was convicted by a jury comprised of a mere

six people. T 238. He argues that the Sixth and Fourteenth

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

defendant is charged with a felony.

A. Standard of review

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).

B. Dominguez Zenon acknowledges Guzman, pending

before the Florida Supreme Court, wrote on the

identical issue

Dominguez Zenon notes this Court decided Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022) pending SC22-1597, which

rejected the con

person jury violated the Sixth and Fourteenth Amendments to the

Id. at 73. The majority opinion in

Guzman found this Court was bound by the United States Supreme

Williams that six-person juries are constitutionally

permissible until the high court expressly revisited that holding. Id.

example of how the law navigates the shifting sands of constitutional

Id. at 75 (Gross, J., concurring). Although disagreeing with

the defendant that Ramos v. Louisiana, 140 S. Ct. 1390 (2020), had

overturned Williams

of jury size, the originalist analysis in Ramos would undercut

Id. at 78 (Gross, J,

Williams s

Ramos . . . suggests that Williams was

Id. (Gross, J., concurring). Furthermore, the

included

the right to a 12-person jury. Id. (Gross, J., concurring).

Guzman is currently pending before the Florida Supreme Court.

Regulating Fla. Bar prmbl. As part of this obligation, undersigned

Sandoval v. State, 884 So. 2d 214, 217 n. 1 (Fla. 2d DCA 2004).

Therefore, although acknowledging this Court is bound by Guzman,

Dominguez Zenon seeks to preserve this argument for further review

by requesting a cite to Guzman.

C. Analysis

On its merits, Dominguez Zenon was charged with two capital

offenses.

not a possible punishment. Hogan v. State, 451 So. 2d 844, 846 (Fla.

1984); see also Phillips v. State, 316 So. 3d 779, 786 (Fla. 1st DCA

2021). Although the mandatory LWOP sentence Dominguez Zenon

received is an effective death sentence. See Point II.

However, currently in Florida the statutory requirement for a

twelve person jury was not triggered. See § 913.10, Fla. Stat. (2013).

Even though, Dominguez Zenon was not entitled to a twelve person

jury based on Florida Statutory law, he still had a constitutional right

to one.

Although the Supreme Court held in Williams v. Florida, 399

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

permissible, Williams is impossible to square with the Supreme

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

concluded that the

id. at 1395; U.S. Const. amend. VI.

Prior to 1970, subjecting Dominguez Zenon to a trial with only

six jurors would have indisputably violated his Sixth Amendment

rights. As the Ramos Court observed, even Blackstone recognized

that under the common law,

confirmed by the unanimous suffrage of twelve of his equals and

Ramos, 140 S. Ct. at 1395

Id.

After the Sixth Amendment was enacted, a bevy of state

courts

ranging from Alabama to Missouri to New Hampshire

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

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

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

1898, the U.S. Supreme Court added its voice to the chorus, noting

a twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349-350

(1898) overruled on other grounds by Collins v. Youngblood, 497 U.S.

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

of twelve people. Id. Given that understanding had been accepted

since 1215, the Court reasone

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

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

Maxwell v. Dow, 176 U.S. 581, 586

(1900). Thirty years later, the

Patton v. United States,

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

our Constitution was written, jury trial in

criminal cases had been in existence in England for several centuries

and carried impressive credentials traced by many to

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

Louisiana, 391 U.S. 145, 151-152 (1968).8

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

Baldwin v. New

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

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

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

Id. at 99.

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

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

ments);

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

ases

a trial by the historical, common53

Id. at 100-01.

According to the Williams

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

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

Ramos, 140 S. Ct. at

1401-02.

That reasoning undermines Williams as well. Ramos rejected

Williams

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

Ramos, 140 S. Ct. at 140001. Ultimately, the Ramos Court explained, the question is whether

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

verdi

See id. at 1395

(quotation marks omitted).

Even setting aside

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

that the goals of the jury guarantee

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

Williams, 399 U.S. at 100

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

cross-section of the community represented seems likely to be

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

assumptions. For example, Ballew noted that more recent research

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

id. at 234, (3) the

chance

for

hung

juries

decreases

with

smaller

juries,

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

id. at 236-37.

Moreover, the Ballew

effectively acknowledging that the studies it relied on also cast doubt

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

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

and sixPost-Ballew

research

has

further

undermined

Williams.

inevitably has a drastic effect on the representation of minority group

., 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)

cutting the size of the jury dramatically increases the chance of

-member jury produces

significantly greater heterogeneity than does the sixDiamond et al., at 449

Ballew, 435

U.S. at 237.

Other important considerations also weigh in favor of the

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

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

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

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

ority

greater on a twelve-

Id. at 466. Finally, larger juries

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

-person juries are four times more likely to return extremely

inbotham

et al., at 52.

Dominguez Zenon recognizes that the state constitution

provides:

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

secure to all and remain inviolate. The qualifications and the

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

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

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

R. Crim. P. 3.270.

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

causes in any

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

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

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

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

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

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

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

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

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

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

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

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)

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 constitut

The racist purpose of the resulting constitution was spelled out

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

governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar Blacks from

legislative office:

Under our Constitution the Judiciary & State officers will be

appointed & the apportionment will prevent a negro legislature.

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

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

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

(Kavanaugh, J., concurring) (nonpillar of a comprehensive and brutal program of racist Jim Crow

measures against African-Americans, especially in voting and jury

historical context.

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

unconstitutional under the Sixth and Fourteenth Amendments of the

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

amend. XIV.

Finally, Dominguez Zenon did not waive his Sixth Amendment

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

Patton, 281 U.S. at 312. Dominguez Zenon

which is fundamental error and can be raised for the first time on

appeal. See e.g., Johnson v. State, 994 So. 2d 960, 964 (Fla. 2008)

Smith v. State, 857 So. 2d 268, 270 (Fla.

5th DCA 2003) (reasoning the constitutional right to a jury trial is

fundamental in nature).

This Court should reverse the judgment and sentence and

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

Sixth

and

Fourteenth

Amendments

Constitution.

the

United

States

II.

Based on the death-is-difference jurisprudence, a

mandatory life without parole for a non-homicide offense

violates the Eighth Amendment of the United States

Constitution.

The trial court imposed a mandatory sentence of life without

the possibility of parole or death-by-incarceration. In this appeal,

Dominguez Zenon argues that mandatory life sentences for a child

sex offense violates the Cruel and Unusual Punishment Clauses of

the United States and Florida Constitutions. U.S. Const. amend. VIII;

Art. I § 17, Fla. Const.

A. Standard of review

A pure question of law is reviewed de novo. State v. Phillips, 119

So. 3d 1233, 1236 (Fla. 2013). This claim was presented and deemed

denied by the lower court because no ruling was issued within its

sixty day jurisdiction after Dominguez Zenon filed his second Rule

3.800(b)(2) motion. SR2.247; Fla. R. Crim. P. 3.800(b)(2)(B).

B. Analysis

At the outset, Dominguez Zenon acknowledges that he has a

steep precedential hill to climb. In Harmelin v. Michigan, 501 U.S.

957, 994-96 (1991), a split Supreme Court declined to extend the

individualized-sentencing requirement of capital cases to mandatory

life sentences. The plurality relied on its death-is-different doctrine,

limiting the application of its individualized-sentencing cases to

capital offenses. Id. at 994-96, 1006-07 (Kennedy, J., concurring).

But Harmelin was decided 27 years ago by a split court five to four

on the issue of individualized sentences, and we now have a much

better understanding of why the death-is-different doctrine should be

applied to mandatory LWOP sentences.

Even though Harmelin did not address the question of whether

death-is-different doctrine should be applied to a mandatory LWOP

sentence for non-homicide offenses, it reasoned that LWOP may not

be irrevocable because there is the potential of retroactive legislation

and clemency relief. However, the reality in Florida such relief is rare

if ever an option.

The Death Penalty Information Center lists only six clemencies

since 1979 for individuals serving a death sentence in Florida. 4 List

Clemencies

Since

1979,

DEATH

PENALTY

INFO.

CENT.,

https://deathpenaltyinfo.org/facts-and-research/clemency/list-ofclemencies-since-1976, (last visited December 19, 2022). All six of

those clemency orders occurred approximately forty or more years

4 Undersigned counsel could not find any document regarding

the number of non-capital clemencies.

ago, with the most recent occurring in 1983. Id.

More recently in March 2021, Governor DeSantis issued a press

deny the pending clemency applications of all murderers and felony

Press Release, FLORIDA COMMISSION ON OFFENDER

REVIEW,

(https://www.fcor.state.fl.us/docs/media/PressReleases/2021/202

1%20Clemency%20Rule%20Change%20Press%20Release.pdf

(last

visited April 6, 2023) [hereinafter DeSantis Press Release]; accord

Bryan v. DeSantis, 343 So. 3d 127 (Fla. 1st DCA 2022) (rejecting

argument that blanket denial violated the

process rights). The press release did not indicate when or if this

blanket denial would expire. It indicated that approximately 1,000

pending petitions would be denied under that declaration. [DeSantis

Press Release]. That exercise of power excluded all people, including

Dominguez Zenon, who were convicted of capital sexual battery any

opportunity for relief from their sentence that can only end with their

death.

Without any avenues for release, the 10,438 Floridians, 11% of

tenced to LWOP will serve

See Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015)

(Breyer, J., dissenting) (discussing the impact of being on death row

for decades); Detailed Data Tool (selecting Florida), THE SENTENCING

PROJECT,

https://www.sentencingproject.org/research/detailed-

state-data-tool/ (last visited April 6, 2023).5 Such is a sentence does

not constitute a dignified life. See Glossip, 135 S. Ct. at 2765.

The Florida Supreme Court concurred that a life sentence

equates to death in its analysis that a life sentence is sufficiently

will]

Ratliff v. State, 914 So. 2d

938, 940 (Fla. 2005) (rejecting the argument that a life sentence is

Canadian Supreme Court also found a sentence that does not give a

reasonable possibility of being released before the individual dies is

5 It is unclear how many of the

10,438 individuals received a

mandatory sentence. Florida Department of Corrections does not

provide statistics on number LWOP or other life sentences. See

generally Annual Report Statistics, FLORIDA DEPARTMENT OF

CORRECTIONS

ANNUAL

REPORT

20-21,

http://www.dc.state.fl.us/pub/annual/2021/FDC_AR2020-21.pdf.

reintegration into society, which presupposes,

definitely and

irreversibly, that [the individual] lacks the capacity to reform and reR. vs. Bissonnette, 2022 SCC 23 (S.C.C. 2022),

https://decisions.scc-csc.ca/scc-csc/scccsc/en/item/19405/index.do (emphasis added). In other words, the

person has been sentenced to death and that makes the punishment

different.

Miller v. Alabama, 567 U.S. 460, 473-475 (2012) (internal

quotations

hope; it means that good behavior and character improvement are

immaterial; it means that whatever the future might hold in store for

the mind and spirit of the convict, he will remain in prison for the

Graham v. Florida, 560 U.S. 48, 70 (2010). (internal

quotations and modifications omitted).

As one commentator said, death-by-incarceration:

communicate[s] to offenders that they have forfeited their

right to ever walk again among society. They have been

forever banished. No act by the incarcerated individual can

change that assessment neither the number of degrees

attained, books written, or prison programs developed nor

the model behavior demonstrated can impact the

inevitable outcome of death in prison. Even in the face of

great internal and genuine transformation, these offenders

will be left to literally molder in prison until death.

Jessica S. Henry, Death-in-Prison Sentences: Overutilized and

Underscrutinized, in LIFE WITHOUT PAROLE: AMERICA S NEW DEATH

PENALTY? 76 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012); see

also id.

in a tomb, there to linger out what may be a long life . . . without any

of its alleviation or rewards

the executed p

debarred from all pleasant sights and

Furman v. Georgia, 408 U.S. 238,

290 (1972) (Brennan, J., concurring). A mandatory LWOP sentence

rejects the potential for rehabilitation

renunciation of all that is embodied in our concept

Id.

at 306 (Brennan, J., concurring). There is no viable path to resurrect

been imposed. See Miller, 567 U.S. at 473-75.

Because a LWOP sentence is the equivalent of death, the deathis-different jurisprudence should be extended when LWOP is

mandated for a non-homicide offense. Specifically, mandatory LWOP

is similarly unconstitutional for the rape of a child where the rape did

not result in death. See Kennedy v. Louisiana, 554 U.S. 407, 413

(2008) (holding the death penalty is unconstitutional for rape of a

child).

The Eighth Amendment

Id. at 419 (citing Trop v. Dulles, 356 U.S. 86 (1958)

When the law

punishes by death, it risks its own sudden descent into brutality,

transgressing the constitutional commitment to decency and

Id. at 420.

without the possibility of parole raises serious constitutional

Campbell v. Ohio, 138 S. Ct. 1059 (2018) (Sotomayor, J.,

and a sentence of life imprisonment without parole, the Court has

drawn on certain Eighth Amendment requirements developed in the

capital

sentencing

context

inform

the

life-without-parole

Id.

-by-incarceration

atory death

penalty statutes in the United States . . . reveals that the practice of

sentencing to death all persons convicted of a particular offense has

Woodson v.

North Carolina, 428 U.S. 280, 292-93 (1976)

Woodson

of more than the particular acts by which the crime was committed

and that there be taken into account the circumstances of the offense

convicted. Id. at 304.

The argument is no different here. Dominguez Zenon is serving

a disproportionately cruel sentence because he has no opportunity

for release and because the trial court had no discretion in

sentencing him to die in prison for a crime that no longer allows a

death sentence. See Kennedy, 554 U.S. at 413.

Importantly

Dominguez Zenon had no prior criminal history. 6 If the trial court

had discretion it may have considered that and the fact that he was

found not guilty of one sexual battery charges.

Finally, a mandatory LWOP sentence for a child sex crime is not

§ 794.011(2), Florida Statutes

defines sexual battery as a capital felony when a person over eighteen

commits sexual battery on a person less than twelve years of age.

by, or union with, the sexual organ of another or the anal or female

Fla. Stat. (2022). The State does not have to prove any force or serious

bodily injury to obtain a conviction of capital sexual battery in Florida

or the corresponding mandatory LWOP sentence. See § 775.082(1)(a),

Fla. Stat. (2019).

Outside of Florida, there is only one state that mandates LWOP

in similar circumstances

Louisiana. See La. Stat. § 42 D.(1) (LWOP

when first degree rape and victim is under thirteen). That makes

6 Dominguez Zenon asks this Court to take judicial notice of his

criminal history since capital crimes do not require a CPC

scoresheet to be created, one is not on the record. His criminal history reveals only the underlying case to this appeal.

Florida one of two states that mandate LWOP for a child sexual

offense. Five additional states require LWOP when additional facts

are present. Ark. Stat. §§ 5-14-103(a)(1) (child r

-4-104(c)(2)(A) (mandatory LWOP); Iowa Stat. §§

709.2 (Class A felony when se

(mandatory LWOP for Class A felonies); Utah Stat.

§ 76-5-402.1(3)(b) (mandatory LWOP for rape of a child if defendant

caused serious bodily injury to victim); Nev. Stat. § 200.336(3)(a)

(mandatory LWOP for

(mandatory LWOP if

-time offense).

Forty-four states do not mandate an individual die in prison

after being convicted of a child sex crime. The United States Supreme

Court did a similar review in Graham and Miller, looking at all the

other jurisdictions to determine that Florida was an extreme outlier.

Specifically, Graham, 560 U.S. at 62-63 (2010), the United States

there are only 109 juvenile offenders serving sentences of life

without parole for nonhomicide