Petition for Writ of Certiorari — Roy E. Terrell, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ROY E. TERRELL, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CAROL STAFFORD HAUGHWOUT

Public Defender

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROY E. TERRELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-0575

[April 3, 2024]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit,

Indian River County; Robert B. Meadows, Judge; L.T. Case No.

312018CF001157A.

Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell,

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III, Senior

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022).

GROSS, GERBER and CONNER, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

Appendix A

1a

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

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

May 8, 2024

ROY E. TERRELL,

Appellant(s)

v.

CASE NO. - 4D2023-0575

L.T. No. - 312018CF001157A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's April 15, 2024 motion for rehearing and certification is

denied.

Served:

Attorney General-W.P.B.

Gary Lee Caldwell

Paul Patti, III

Palm Beach Public Defender

KR

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

4D2023-0575 May 8, 2024

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2023-0575 May 8, 2024

Appendix B

2a

ARGUMENT

I. FUNDAMENTAL ERROR OCCURRED BECAUSE THE

JURY INSTRUCTIONS RETROACTIVELY APPLIED A

VERSION OF THE SEXUAL BATTERY STATUTE

ENACTED AFTER THE DATES ALLEGED IN THE

AMENDED INFORMATION.

Count 1 alleged that, between dates in 2013 and 2016,

Appellant “did on one or more occasion unlawfu1Iy, being then 18

years of age or older, commit sexual battery upon [alleged victim],

who was then less than 12 years of age, in violation of Florida

Statute 794.011(2).” R 129. Count 3 alleged that, between those

same dates, Appellant “did on one or more occasion unlawfully,

while in a position of familial or custodial authority to [alleged

victim], then a child 12 years of age or older but less than 18 years

of age, to engage in an act which constitutes sexual battery with

that child, in violation of Florida Statute 794.011(8)(b).” R 129.

During the alleged time periods, the Legislature defined

“sexual battery” as “oral, anal, or vaginal penetration by, or union

with, the sexual organ of another or the anal or vaginal penetration

of another by any other object; however, sexual battery does not

include an act done for a bona fide medical purpose.” §§

Appendix

20

3a

C

794.011(1)(h), Fla. Stat. (2012); 794.011(1)(h), Fla. Stat. (2019)

(emphasis added).

In 2022, the Legislature expanded the activity covered by the

sexual battery statute.

It redefined “sexual battery” as “oral, anal, or female genital

vaginal penetration by, or union with, the sexual organ of another

or the anal or female genital vaginal penetration of another by any

other object; however, sexual battery does not include an act done

for a bona fide medical purpose.” Ch. 2022-165, § 4 Laws of Fla.

(alterations in original). It also renumbered this paragraph from

(1)(h) to (1)(j). See § 794.011(1)(j), Fla. Stat. (2022).

At the same time, the Legislature created the following

definition of “female genitals” in section 794.011(1): “(b) ‘Female

genitals’ includes the labia minora, labia majora, clitoris, vulva,

hymen, and vagina.” Ch. 2022-165 (underlining in original; italics

added). See § 794.011(1)(b), Fla. Stat. (2022).

Thus, under the current statute, the state need not prove

vaginal penetration if it proves penetration under the expanded list

set out in the foregoing definition.

21

4a

At Appellant’s February 2023 trial, the prosecutor prepared

the jury instructions which were discussed at the charge

conference. T 454 (“MR. LONG [ASA]: And just for the record, as I

wrote these, I have no objection to my own suggestions.”). In the

charge conference, there was no substantive discussion of the

instructions on sexual battery, and no objection was made to the

state’s proposed instructions on sexual battery. T 453-60.

The court then instructed the jury on sexual battery using the

elements of the 2022 statute rather than the elements of the crime

as it existed at the time of the alleged crimes at bar:

Count 1, Sexual battery on a child under 12 by a

perpetrator 18 or older. To prove the crime of sexual

battery upon a person less than 12 years of age, the

State must prove the following three elements beyond a

reasonable doubt: One, A, Roy Terrell committed an act

upon or with [alleged victim] in which the sexual organ of

the Defendant penetrated or had union with the anus,

female genitals, or mouth of the victim. Or B, Roy Terrell

committed an act upon or with [alleged victim] in which

the anus or female genitals of [alleged victim] were

penetrated by an object. Two, at the time, [alleged victim]

was less than 12 years of age. Three, at the time, Roy

Terrell was 18 years of age or older.

…

Female genitals includes the labia minora, the labia

majora, clitoris, vulva, hymen and vagina.

22

5a

T 529 (emphasis added); R 201.

Count 3, sexual battery on a child familial or custodial

authority. To prove the crime of engaging in an act that

constitutes sexual battery upon or with a child 12 years

of age or older, but younger than 18 years of age by a

person in a familial or custodial authority, the State must

prove the following three elements beyond a reasonable

doubt: Roy Terrell engaged in any act that constituted

sexual battery. Two, at the time, [alleged victim] was 12

years of age or older, but younger than 18 years of age.

Three, at the time, Roy Terrell was in a position of

familial or custodial authority to [alleged victim].

Sexual battery means, A, the sexual organ of Roy Terrell

penetrated or had union with the anus, female genitals or

mouth of [alleged victim] or B, the anus or female genitals

of [alleged victim] were penetrated by an object.

…

Female genitals includes the labia minora, the labia

majora, clitoris, vulva, hymen and vagina.

T 531-32 (emphasis added); R 207-08.

Thus, without objection, the jury was instructed on the

expanded 2022 elements of the crime rather than the elements at

the time covered by the amended information.

The state then relied on these instructions in final argument. T

470-72.

Despite the absence of an objection, fundamental error

occurred.

23

6a

Fundamental error

An erroneous instruction on the elements of the offense

charged violates the Due Process and Jury Clauses of the state and

federal constitutions. Art. I, §§ 9, 16, 22, Fla. Const.; Amend. VI,

XIV, U.S. Const.

Such error amounts to fundamental error requiring reversal

even in the absence of an objection at trial: “the giving of an

inaccurate definition of a disputed element of the crime can rise to

the level of fundamental error where the inaccurate definition

reduces the State’s burden of proof on an essential element of the

charged offense. Kennedy v. State, 59 So. 3d 376, 381 (Fla. 4th DCA

2011) (citing Reed v. State, 837 So. 2d 366, 368-69 (Fla. 2002)).”

Woolman v. State, 292 So. 3d 530, 535-36 (Fla. 2d DCA 2020)

(finding fundamental error due to erroneous instruction on

“custodial authority” element of charge of sexual battery while in

position of familial or custodial authority). See also Schminky v.

State, 305 So. 3d 640 (Fla. 3d DCA 2020) (same; erroneous

instruction on knowledge element of attempted murder of law

enforcement officer).

24

7a

The error is fundamental even if the erroneous instruction is

not used in final argument and, in fact, even if counsel correctly

states the law to the jury:

The state argues that the error was not fundamental

because the parties did not rely on the erroneous

instruction during closing argument. We rejected this

argument in Garrido v. State, 97 So. 3d 291, 295 (Fla.

4th DCA 2012), where we wrote that “[a]s the jury must

follow the law as set forth by the trial court, the fact that

the prosecutor and defense counsel correctly state the

law during closing does not cure the trial court’s reading

of an erroneous instruction.”

Salmon v. State, 267 So. 3d 25, 30 (Fla. 4th DCA 2019).

The court erroneously instructed the jury on the

elements of sexual battery

“[I]t is firmly established law that the statutes in effect at the

time of commission of a crime control as to the offenses for which

the perpetrator can be convicted, as well as the punishments which

may be imposed.” State v. Smith, 547 So. 2d 613, 616 (Fla. 1989).

“[T]he repeal or amendment by subsequent legislation, of a

preexisting criminal statute does not become effective, either as

repeal or as an amendment of such preexisting statute, in so far as

offenses are concerned that have been already committed prior to

the taking effect of such repealing or amending law.” Raines v.

25

8a

State, 42 Fla. 141, 28 So. 57, 58 (1900). See also Smiley v. State,

966 So. 2d 330 (Fla. 2007) (holding that substantive statute

expanding right of self-defense by abolishing common-law duty to

retreat before using deadly force could not apply retroactively under

article X, section 9 of state constitution).

Moreover, a criminal statute may not be retroactively applied if

“different, or less evidence, is required to convict an offender, than

was required, when the act was committed.” Carmell v. Texas, 529

U.S. 513, 524 (2000) (quoting and following Calder v. Bull, 3 U.S.

386, 390 (1798)). Retroactive application in these circumstances

violates the Ex Post Facto and Due Process Clauses of the state and

federal constitutions. Art. I § 10, Fla. Const.; Art. I, § 10, U.S.

Const.. The 2022 statute which requires different evidence or less

evidence to prove sexual battery than did the statute in effect at

time of the alleged crimes in the amended information.

In summary, the 2022 definition of the crime of sexual battery

does not apply to this case. Instruction on its elements misstated

the elements of the crime, amounting to fundamental error

occurred. The convictions and sentences for sexual battery should

be reversed.

26

9a

Finally, reversal of the sexual battery conviction for count 3

requires resentencing as to the molestation charges (counts 2 and

4), as it affects the scoresheet as to those offenses. See Theophile v.

State, 78 So. 3d 574, 582 (Fla. 4th DCA 2011) (“We reverse and

remand with directions to vacate the defendant’s conviction for

robbery with a firearm, recalculate the scoresheet to reflect the

absence of this primary offense, and resentence the defendant on

the remaining charge of possession of a concealed firearm using a

corrected scoresheet.”); Ewing v. State, 56 So. 3d 67, 68 (Fla. 2d

DCA 2011).

27

10a

IV. APPELLANT’S CONVICTIONS AND SENTENCES

SHOULD BE REVERSED BECAUSE HE WAS

CONVICTED BY A SIX-PERSON JURY.

Florida allows trial by a jury of six in non-capital cases. Art. I,

§ 22, Fla. Const.; § 913.10, Fla. Stat. Pursuant to this state

constitutional provision, Appellant was tried by a trial by a jury of

six rather than twelve. Appellant contends that the federal

constitution requires a jury of twelve, so that fundamental error

occurred because he was deprived of this right. He acknowledges

contrary authority, as discussed below.

Before jury selection, defense counsel objected to trial by a

jury of six, and asked for a jury of twelve, arguing that it was a

constitutional right, while recognizing that there is contrary case

law. T 5-6. The court denied the request. T 6. Counsel renewed the

objection before the jury was sworn. T 185-86.

Williams v. Florida, 399 U.S. 78 (1970), held that state court

juries as small as six were constitutionally permissible, despite the

determination in Thompson v. Utah, 170 U.S. 343, 349-50 (1898),

that the jury guaranteed by the Sixth Amendment consists “of

twelve persons, neither more nor less.”

38

11a

Thompson held that the Sixth Amendment enshrined the right

to a jury of twelve as provided at common law. Id. at 349-50. In

addition to the authorities cited there, one may note that

Blackstone stated that the right to a jury of twelve is even older,

and more firmly established than, the unqualified right to counsel

in criminal cases. 4 William Blackstone, Commentaries on the Laws

of England, ch. 27 (“Of Trial and Conviction”). 2 Blackstone traced

the right back to ancient feudal right to “a tribunal composed of

twelve good men and true,” and wrote that “it is the most

transcendent privilege which any subject can be enjoy or wish for,

that he cannot be affected in his property, his liberty or his person,

but by the unanimous consent of twelve of his neighbours and

equals.” 3 Blackstone, ch. 23 (“Of the Trial by Jury”). 3

Thus, at the time of the amendment’s adoption, the essential

elements of a jury included “twelve men, neither more nor less.”

Patton v. United States, 281 U.S. 276, 288 (1930).

2 Found at https://lonang.com/wp-

content/download/Blackstone-CommentariesBk4.pdf

3 Found at https://lonang.com/wp-

content/download/Blackstone-CommentariesBk3.pdf

39

12a

Williams itself has now come into question in light of Ramos v.

Louisiana, 140 S. Ct. 1390 (2020), which concluded that the Sixth

Amendment’s jury requirement encompasses what the term “meant

at the Sixth Amendment’s adoption.” Id. at 1395. (Of course, the

requirement that the jury be composed of men has been overturned

by a subsequent amendment – the Equal Protection Clause of the

Fourteenth Amendment. See J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 146 (1994)).

In this case, Appellant did not receive a trial by a jury as the

term was meant at the Sixth Amendment’s adoption, or at the time

of the Fourteenth Amendment for that matter, as he was not tried

by a jury of twelve. The undersigned acknowledges that this Court

has rejected this argument in, e.g., Guzman v. State, 350 So. 3d 72

(Fla. 4th DCA 2022). The issue is now pending on certiorari in the

United State Supreme Court in several cases, including the

Guzman case itself, which is Supreme Court case 25-5173. The

Supreme Court has requested a response from the state.

The error is structural, as the conviction arose from a sheer

denial of this fundamental right. A new trial should be ordered.

40

13a