Petition for Writ of Certiorari — Jarvis Parker, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JARVIS PARKER, 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

JARVIS PARKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-0688

[July 18, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Bernard I. Bober, Judge; L.T. Case No. 21-9340 CF10A.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Sorraya M. SolagesJones, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

CIKLIN, LEVINE and CONNER, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

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

September 11, 2024

JARVIS PARKER,

Appellant(s)

v.

CASE NO. - 4D2023-0688

L.T. No. - 21-009340CF10A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's July 31, 2024 motion for rehearing, written opinion, and

certification is denied.

Served:

Attorney General-W.P.B.

Gary Lee Caldwell

Palm Beach Public Defender

Sorraya M Solages-Jones

KR

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

4D2023-0688 September 11, 2024

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2023-0688 September 11, 2024

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IV. SECTION 790.23 IS FACIALLY UNCONSTITUTIONAL

AS A VIOLATION OF THE RIGHT TO BE ARMS UNDER

THE FEDERAL CONSTITUTION.

The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” Amend. II,

U.S. Const.

Appellant acknowledges that the statute has been held not to

violate the Second Amendment. See Nelson and Edenfield.

Nelson was decided in 1967, long before the emergence of a

new standard for Second Amendment cases. See New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Further, this

Court should not agree with Edenfield because it is contrary to

Bruen. As noted in Edenfield, the Supreme Court presently has

before it the case of United States v. Rahimi, no. 22-915, which

involves a somewhat similar issue. The question before the Court is

whether the Second Amendment bars a statute that criminalizes

possession of a firearm by a person subject to domestic-violence

restraining orders. The Court heard oral argument on November 7,

2023.

Bruen abandoned the two-part approach to Second

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Amendment cases that lower courts had adopted, and set out a new

standard under which the government “must demonstrate that the

regulation is consistent with this Nation’s historical tradition of

firearm regulation”:

Today, we decline to adopt that two-part approach. In

keeping with [District of Columbia v. Heller, 554 U.S. 570

(2008)], we hold that when the Second Amendment’s

plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct. To

justify its regulation, the government may not simply

posit that the regulation promotes an important interest.

Rather, the government must demonstrate that the

regulation is consistent with this Nation’s historical

tradition of firearm regulation. Only if a firearm

regulation is consistent with this Nation’s historical

tradition may a court conclude that the individual’s

conduct falls outside the Second Amendment’s

“unqualified command.” Konigsberg v. State Bar of Cal.,

366 U.S. 36, 50, n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105

(1961).

Bruen, 597 U.S. at 17. The Court later reiterated this standard:

… . When the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively

protects that conduct. The government must then justify

its regulation by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.

Only then may a court conclude that the individual’s

conduct falls outside the Second Amendment’s

“unqualified command.”

Id. at 24 (internal quotation marks and citation omitted).

Section 790.23(1)(a) makes it “unlawful for any person to own

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or to have in his or her care, custody, possession, or control any

firearm” if that person has been convicted “of a felony in the courts

of this state[.]”

This statute impinges on conduct protected by the Second

Amendment. Historically, the right to “keep” arms was “a common

way of referring to possessing arms, for militiamen and everyone

else.” Heller, 554 U.S. at 583 (emphasis in original). It refers to the

right to be “armed and ready for offensive or defensive action in a

case of conflict with another person.” Id. at 584.

A blanket prohibition on this class of convicted felons from

possessing firearms for any potentially lawful purposes, such as

self-defense, invokes the Second Amendment. Individual selfdefense is “the central component” of the Second Amendment

right.” Id. at 29.

Adopting, the approach taken in First Amendment cases, the

Court wrote that the government has the burden to prove the

constitutionality of the infringement on the right at issue. Bruen,

597 U.S. at 24–25 (analogizing burden to state’s heavy burden to

prove constitutionality of restrictions on freedom of speech).

In such circumstances, “the government must generally point to

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historical evidence about the reach of the First Amendment

protections.” Id. at 24–25 (emphasis in original).

Here, here there is no ratification-era tradition or historical

support for a legislative power to permanently dispossess all felons

of firearms. Justice Barrett previously highlighted the lack of a

historical record while sitting on the Seventh Circuit Court of

Appeals:

The best historical support for a legislative power to

permanently dispossess all felons would be founding-era

laws explicitly imposing - or explicitly authorizing the

legislature to impose - such a ban. But at least thus far,

scholars have not been able to identify any such laws.

The only evidence coming remotely close lies in proposals

made in the New Hampshire, Massachusetts, and

Pennsylvania ratifying conventions. In recommending

that protection for the right to arms be added to the

Constitution, each of these proposals included limiting

language arguably tied to criminality.

Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019), abrogated by

Bruen (Barrett J., dissenting) (emphasis added).

Section 790.23, Florida Statutes, dates back only to 1955.

Bearing in mind that Bruen overturned New York’s carry law from

1911, this statute’s existence since 1955 gives no support to its

constitutionality. If anything, this enactment some 110 years after

Florida became a state shows that such a prohibition is not a part

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of Florida or the nation’s historical tradition of firearms regulation.

Similarly, the federal prohibition on felons possessing firearms,

which Appellant asserts is unconstitutional, appears first in the

Gun Control Act of 1968. See 18 U.S.C. § 922(g)(1). This, too, does

not evince an enactment-era historical tradition of such a

regulation.

While the government has the burden of proving that the

prohibition on felons possessing firearms is a part of the historical

tradition of firearms regulation in this country, it is readily

apparent that such proof is not available. There exists little to no

evidence of a blanket, lifelong prohibition in the relevant historical

record; much less is there evidence of an enduring, enactment-era

historical tradition of such a regulation. Consequently, section

790.23(1)(a) cannot survive the test outlined by the Supreme Court

in Bruen. Hence the conviction for possession of a firearm by a

convicted felon should be reversed with instructions to discharge

Appellant.

Because the record does not show that Appellant would have

received the same sentence on the other charges, they sentences for

counts I and II should be reversed and remanded for resentencing

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under Ewing and Theophile.

V. THE COURT ABUSED ITS DISCRETION IN DENYING

A CONTINUANCE SO THAT THE DEFENSE COULD

PRESENT THE TESTIMONY OF DET. CLARKE.

The denial of the requested continuance

The probable cause affidavit shows Det. Clarke was the first

detective involved in the case. R 33. Also at the suppression

hearing, Det. Smith said Clarke had received an untruthful

statement from CS. T 438. At trial, CS testified that she made a

sworn statement to Clarke at the hospital. T 560–61. Det. Smith

took over the case from Clarke the next day. T 590–91, 607.

Before jury selection, defense counsel moved for a continuance

in order to obtain witnesses, saying she did not have trial

subpoenas out. T 54. The court directed the state not to call off any

witnesses that it had subpoenaed. T 54. The prosecutor said the

defense should subpoena whoever it needed because the state had

not subpoenaed every witness. T 55.

In the ensuing discussion, defense counsel said former Det.

Stanley and Det. Clarke had received CS’s first statement. T 60–61.

The state said the statement was on a body camera, and defense

counsel said she had had the body cam videos transcribed and

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VI. APPELLANT’S CONVICTIONS AND SENTENCES

SHOULD BE REVERSED BECAUSE HE WAS

CONVICTED BY A SIX-PERSON JURY IN VIOLATION OF

THE DUE PROCESS AND JURY CLAUSES OF THE

FEDERAL CONSTITUTION.

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

§ 22, Fla. Const.; § 913.10, Fla. Stat. Accordingly, this case

involved a trial by a jury of six rather than twelve members.

Appellant contends that the Due Process, Privileges and

Immunities, and Jury Clauses of the federal constitution requires a

jury of twelve, so that fundamental error occurred because he was

deprived of this right. Amend. VI, XIV, U.S. Const. He acknowledges

contrary authority, as discussed below.

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.”

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,

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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”).3 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”). 4

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).

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

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

content/download/Blackstone-CommentariesBk4.pdf

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

content/download/Blackstone-CommentariesBk3.pdf

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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’s adoption for that matter, as he was

not tried by a jury of twelve. The undersigned acknowledges that

this Court has rejected this argument. Guzman v. State, 350 So. 3d

72 (Fla. 4th DCA 2022), rev. denied SC2022–1597 (Fla. June 6,

2023), petition for cert. pending No. 23–5173 (U.S.).

The error is fundamental and structural, as the conviction

arose from a sheer denial of this fundamental right.

Waiver of the constitutional right of trial by the proper number

of jurors must be made personally by the defendant. See Blair v.

State, 698 So. 2d 1210, 1217 (Fla. 1997) (finding valid defendant’s

agreement to verdict by five-member jury valid when made “in a

colloquy at issue here, including a personal on-the-record waiver,”

and sufficient to pass muster under the federal and state

constitutions,” and his decision was made “toward the end of his

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trial, after having ample time to analyze the jury and assess the

prosecution's case against him. He affirmatively chose to proceed

with a reduced jury as opposed to a continuance or starting with

another jury.”). Such was not the case here. A new trial should be

ordered.

VII. APPELLANT’S HABITUAL OFFENDER SENTENCE IS

ILLEGAL.

The court sentenced Appellant to concurrent 30-year habitual

offender sentences for attempted second degree murder, shooting at

or into an occupied vehicle, and possession of a firearm by a

convicted felon, with a 25-year mandatory minimum. R 512–20.

During the pendency of this appeal, Appellant filed a motion to

correct sentence on the ground that the habitual offender sentence

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

constitutions. See pages 1151–57 of the supplemental record (SR1)

filed on December 5, 2023.

Appellant pointed out that the habitual offender statute

requires that the state prove facts beyond the mere fact of prior

convictions—it must also prove that the crime occurred within a

specific time period with respect to the crime at sentencing, and

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that Appellant “has not received a pardon for any felony or other

qualified offense that is necessary for” habitual offender sentencing.

See § 775.084(1)(a) and (3)(a) Fla. Stat. Further, the statute

provides that the state may prove these facts only by the

preponderance of the evidence, and the factual findings are to be

made by the judge rather an a jury. § 775.084(3).

Appellant argued that because the statute provides for the

court to make the necessary findings, and to do so upon proof by

the preponderance of the evidence rather than beyond a reasonable

doubt, the habitual offender sentence on its face 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.

In this case, the court made the statutory findings, but they

were not made by a jury. Hence, use of these findings at sentencing

to enhance the sentence is contrary to the Due Process and Jury

Clauses of the state and federal constitutions.

Judicial fact-finding that goes “beyond merely identifying a

prior conviction” implicates the Sixth Amendment. Descamps v.

United States, 570 U.S. 254, 269 (2013) (“only a jury, and not a

judge, may find facts that increase a maximum penalty, except for

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the simple fact of a prior conviction”). A sentencing judge “can do no

more, consistent with the Sixth Amendment, than determine what

crime, with what elements, Appellant was convicted of.” Mathis v.

United States, 579 U.S. 500, 511–12 (2016) (emphasis added).

The only fact that is arguably excepted from this Sixth

Amendment requirement is “the simple fact of a prior conviction.”

Mathis, 579 U.S. at 511. The court went beyond finding the simple

fact that Appellant had been convicted of certain crimes. It made

findings as to when he was convicted and as to when he was

released from prison.

Appellant acknowledges that Florida appellate courts have

rejected similar arguments based on Apprendi v. New Jersey, 530

U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013).

See, e.g., Chapa v. State, 159 So. 3d 361 (Fla. 4th DCA 2015). But

no reported Florida appellate decision has addressed Descamps and

Mathis, which sharply limit the fact-finding power of the sentencing

court.

Under the Supremacy Clause, this Court is bound by the

decisions of the United States Supreme Court in Descamps and

Mathis.

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Appellant further notes that at the time of this filing, there is a

case pending for certiorari review in the United States Supreme

Court involving a similar issue in the case of Erlinger v United

States, No. 23–370 (Nov. 20, 2023) (order granting petition for

review). That case involves the Armed Career Criminal Act (ACCA),

which provides for enhanced sentencing for a defendant who has at

least “three previous convictions … for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. 924(e)(1).

The Court granted review after receiving the Solicitor General’s

bring in response to the petition. The Solicitor General’s brief states:

“the government now acknowledges that the Constitution requires

the government to charge and a jury to find beyond a reasonable

doubt (or a defendant to admit) that ACCA predicates were

committed on occasions different from one another.” Id. at page 8

(emphasis added). 5

5 The brief was filed on October 23, 2023 and is available on

the Supreme Court website:

https://www.supremecourt.gov/DocketPDF/23/23–

370/285305/20231017172808600_23–

370%20Erlinger%20v.%20USA.pdf

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Finally, because the enhancement issue was not submitted to

the jury, new proceedings for a jury determination of the issue

would be barred by the Double Jeopardy Clauses of the state and

federal constitutions. But see Gaymon v. State, 288 So. 3d 1087

(Fla. 2020) (holding that proper remedy for harmful error resulting

from court, not jury, finding fact of dangerousness was to remand

for jury to make determination of dangerousness).

Appellant’s motion further pointed that the state did not

present evidence at sentencing showing that Appellant has not been

pardoned for any of the alleged qualifying convictions, and the

Court did not make the findings required under the statute. See R

776–820 (sentencing transcript).

Accordingly, he argued, the sentence is contrary to Florida law

and not supported by the evidence. To conduct new habitual

offender proceedings would violate the Double Jeopardy Clauses of

the state and federal constitutions. But see Gaymon.

Appellant acknowledges that Eutsey v. State, 383 So. 2d 219

(Fla. 1980), and State v. Rucker, 613 So. 2d 460, 462 (Fla. 1993),

held that the burden is on the defendant to assert a pardon or set

aside as an affirmative defense and, once the state has introduced

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unrebutted evidence of prior convictions, the court may infer that

there has been no pardon. Those cases were decided long before the

constitutional revolution wrought by the Supreme Court after the

turn of the century, beginning with Apprendi, and carrying through

to Descamps and Mathis (and now Erlinger).

The plain language of the statute provides that a predicate fact

for habitualization is the fact that the defendant has not been

pardoned. § 775.084(1)(a), Fla. Stat. (providing that the court may

impose a habitual offender sentence if “4. The defendant has not

received a pardon for any felony or other qualified offense that is

necessary for the operation of this paragraph”). Further, the statute

also imposes as a predicate fact that “5. A conviction of a felony or

other qualified offense necessary to the operation of this paragraph

has not been set aside in any postconviction proceeding.”

The judiciary may not rewrite the statute to relieve the state

from having to prove this predicate fact. Under the Separation of

Power provisions of the state constitution and the Due Process

Clauses of the state and federal constitutions, a court may not

rewrite a statute, especially in a way to favors the prosecution. “We

are not at liberty to add words to statutes that were not placed

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there by the Legislature.” Hayes v. State, 750 So. 2d 1, 4 (Fla.

1999). “We will not rewrite a ... law to conform it to constitutional

requirements.” United States v. Stevens, 559 U.S. 460, 481 (2010)

(internal citations and quotation marks omitted; ellipse in original).

“Constant competition between constable and quarry,

regulator and regulated, can come as no surprise in our changing

world. But neither should the proper role of the judiciary in that

process—to apply, not amend, the work of the People’s

representatives.” Henson v. Santander Consumer USA Inc., 582 U.S.

79, 90 (2017) (opinion of Gorsuch, J., for unanimous Court).

In this case, Appellant entered a plea of not guilty. “The plea of

not guilty puts in issue every material element of the crime charged

in the information.” Licata v. State, 88 So. 621, 622 (Fla. 1921).

Accordingly, the state had the burden to prove the sentencing fact

to a jury beyond a reasonable doubt. Further, the predicate facts for

the sentencing enhancement were not alleged in the charging

document so that the sentencing enhancement is contrary to the

Due Process Clauses of the state and federal constitutions. As the

Solicitor General conceded in its brief in Erlinger, facts necessary

for a sentencing enhancement must be alleged in the charging

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document.

CONCLUSION

For the foregoing reasons, the convictions and sentences

should be reversed, or the Court should grant such other relief as

may be appropriate.

CAROL STAFFORD HAUGHWOUT

Public Defender

Fifteenth Judicial Circuit

421 Third Street

West Palm Beach, Florida 33401

/s/ Gary Lee Caldwell

GARY LEE CALDWELL

Assistant Public Defender

Florida Bar No. 256919

Attorney for Appellant

(561)355–7600

gcaldwel@pd15.state.fl.us

jcwalsh@pd15.state.fl.us

appeals@pd15.state.fl.us

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