Reply Brief — Jarvis Parker, Petitioner v. Florida

No. 24–6146

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

_____________

REPLY BRIEF FOR THE PETITIONER

DAN EISINGER

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................. ii

ARGUMENT ................................................................................. 1

Florida’s habitual felony offender statute, and petitioner’s

sentence under it, are unconstitutional. ..................................... 1

Florida’s statute imposing a ban on possession of a firearm by

convicted felons violates the Second Amendment. ....................... 6

The reasoning of Williams v. Florida has been rejected, and the

case should be overruled. ........................................................... 9

CONCLUSION ............................................................................ 12

i

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............... 3

Ballew v. Georgia, 435 U.S. 223 (1978)........................................ 11

Blair v. State, 698 So. 2d 1210 (Fla. 1997) ................................... 10

Cole v. Arkansas, 333 U.S. 196 (1948)........................................... 5

District of Columbia v. Heller, 554 U.S. 570 (2008).......................... 8

Edenfield v. State, 379 So. 3d 5 (Fla. 1st DCA 2022) ...................... 6

Erlinger v. United States, 602 U.S. 821 (2024) ................................ 4

Hollingsworth v. State, 293 So. 3d 1049 (Fla. 4th DCA 2020).......... 2

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) .................................. 8

Khorrami v. Arizona, 598 U.S. — (2022) ....................................... 10

Mincey v. State, 889 So. 2d 211 (Fla. 4th DCA 2004)...................... 3

Neder v. United States, 527 U.S. 1 (1999) ...................................... 5

New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)... 7, 8

State v. Johnson, 616 So. 2d 1 (Fla. 1993) ................................. 2, 4

Thornhill v. Alabama, 310 U.S. 88, 96 (1940) ................................. 5

United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) .................... 7

Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA 1998) .................... 10

Washington v. Recuenco, 548 U.S. 212 (2006) ............................ 4, 5

Williams v. Florida, 399 U.S. 78 (1970) ....................................... 11

Rules

Fla. R. Crim. P. 3.800(b) ........................................................... 1, 3

Constitutional Provisions

U.S. Const. amend II. ....................................................... 6, 7, 8, 9

ii

U.S. Const. amend XIV. ................................................................ 9

iii

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO. 24–6146

JARVIS PARKER, PETITIONER,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

REPLY BRIEF FOR THE PETITIONER

_____________

ARGUMENT

Florida’s habitual felony offender statute, and petitioner’s

sentence under it, are unconstitutional.

A. Respondent says (Br. In Op. 5–6) Florida law did not allow a

defendant to raise his issue via a post-sentencing motion under

Florida Criminal Rule 3.800(b)(2) .

The Fourth District could not have found Petitioner’s claim

defaulted because it has specifically held, based on its own and

state supreme court precedents, that rule 3.800(b)(2) is a proper

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vehicle for preserving such claims:

The trial court was wrong in its criticism of appellant's

attorney for filing a motion pursuant to rule 3.800(b)(2).

This was the proper method to raise the issue of an

Apprendi violation. See State v. Fleming, 61 So. 3d 399

(Fla. 2011) (Apprendi claim raised in a rule 3.800(b)(2)

motion). In Bean v. State, 264 So. 3d 947 (Fla. 4th DCA

2019), we reviewed the appeal of a denial of a rule

3.800(b)(2) motion, in which the defendant argued that

the court's assessment of points for victim injury violated

Apprendi and Alleyne. Thus, counsel here properly raised

the issue by way of Rule 3.800(b)(2).

Hollingsworth v. State, 293 So. 3d 1049, 1051 (Fla. 4th DCA 2020).

See also Arrowood v. State, 843 So. 2d 940 (Fla. 1st DCA 2003)

(finding defendant properly filed a 3.800(b)(2) motion to raise his

Apprendi claim).

Regardless, respondent does not dispute that one may raise

the facial constitutionality of a statute for the first time on appeal

under Florida’s “fundamental error” rule. In State v. Johnson, 616

So. 2d 1 (Fla. 1993), the defendant contended for the first time on

appeal that amendments to the habitual offender statute violated

the state constitution’s single subject rule for legislative

enactments. The supreme court rejected the state’s argument that

the defendant was “prohibited from challenging the constitutionality

of chapter 89–280’s amendments for the first time on appeal

2

because the issue does not constitute fundamental error,” and held

the amendment violated the state constitution. Id. at 3–4. Hence,

the Fourth District has written that a defendant may challenge the

constitutionality of a sentencing statute for the first time on appeal

even without filing a motion to correct the sentence under rule

3.800(b): “the supreme court in Brannon v. State, 850 So. 2d 452,

453 (Fla. 2003), recognized that the application of fundamental

error arising out of the facial unconstitutionality of a sentencing

statute, as here, can be utilized to circumvent the 3.800(b) process

by considering the illegal sentence on appeal.” Mincey v. State, 889

So. 2d 211, 212 (Fla. 4th DCA 2004).

B. On the merits, respondent mainly relies (Br. in Op. 10–11)

on Almendarez-Torres v. United States, 523 U.S. 224 (1998).

This reliance ignores the question of whether AlmendarezTorres continues to be good law. Respondent offers no argument

justifying the continued viability of that decision.

Respondent also asserts (Br. in Op. 12–13) that any error was

harmless. Basically, its argument is that the record was sufficient

such that a jury could have found that Petitioner qualified for

habitual felony offender sentencing.

3

This argument ignores the fact that, if the statute is

unconstitutional, there is no basis in Florida law for the enhanced

punishment imposed by the trial court. A sentence cannot be

imposed without a basis in law. See Johnson, 616 So. 2d at 5

(holding habitual offender statute was invalid at the time of

sentencing and remanding “for resentencing in accordance with the

valid laws in effect at the time of Johnson’s sentencing”).

Moreover, the prosecution’s amended information in this case

alleged the elements necessary to support a sentencing

enhancement for discharging a firearm and causing bodily injury,

but it did not allege any element of the habitual felony offender

statute. R 116–17. Any possible distinction between a sentencing

factor and an element of the crime is illusory: “we have treated

sentencing factors, like elements, as facts that have to be tried to

the jury and proved beyond a reasonable doubt.” Washington v.

Recuenco, 548 U.S. 212, 220 (2006). As the Court wrote in Erlinger

v. United States, 602 U.S. 821 (2024), the Jury and Due Process

Clauses “require the government to include in its criminal charges

all the facts and circumstances which constitute the offence,” and

an “indictment or ‘accusation ... lack[ing] any particular fact which

4

the laws ma[d]e essential to the punishment” should be treated as

“no accusation’ at all.” Id. at 831 (internal citations and quotation

marks omitted).

“Conviction upon a charge not made would be sheer denial of

due process.” Thornhill v. Alabama, 310 U.S. 88, 96 (1940) (internal

citations and quotation marks omitted). See also Cole v. Arkansas,

333 U.S. 196, 201 (1948) (“It is as much a violation of due process

to send an accused to prison following conviction of a charge on

which he was never tried as it would be to convict him upon a

charge that was never made.”).

This case is not like Recuenco, where the prosecution alleged

the sentence-enhancing fact that Recuenco committed the crime

with a firearm, id., 548 U.S. at 215, or Neder v. United States, 527

U.S. 1, 6 (1999), where the indictment alleged materiality, id. at 6,

but the enhancing fact was not submitted to the jury. Here, the

necessary facts were not alleged. Sentencing Petitioner for an

enhanced crime that has not been alleged cannot be harmless error

under Thornhill and Cole.

5

Florida’s statute imposing a ban on possession of a

firearm by convicted felons violates the Second

Amendment.

A. Respondent says the issue was not preserved below so that

there is an independent and adequate law ground for the state

court decision.

This contention is contrary to Florida law. In Edenfield v.

State, 379 So. 3d 5 (Fla. 1st DCA 2022), the court wrote, citing

long-settled state supreme court precedents:

The facial constitutional challenge to section 790.23(1)(a)

was not made in the trial court. Nonetheless, we can

consider this unpreserved issue because “a conviction for

the violation of a facially invalid statute would constitute

fundamental error.” Westerheide v. State, 831 So. 2d 93,

105 (Fla. 2002) (quoting Trushin v. State, 425 So. 2d

1126, 1129 (Fla. 1982)); see also Davis v. Gilchrist Cnty.

Sheriff's Off., 280 So. 3d 524, 531 (Fla. 1st DCA 2019).

Id. at 7 n.1.

B. Section 790.23(1)(a), Florida Statutes imposes a lifetime

ban on possession of a firearm by anyone convicted of a felony.

Contrary to respondent’s suggestion (Br. in Op. 14–15), the statute

is unconstitutional in all its applications. Petitioner does not deny

that Florida could write a statute that conformed to the Second

Amendment. Likewise, New York could have written a statute

6

conforming to the Second Amendment instead of the broad

restriction on the right to bear arms that was struck down in New

York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022).

The Florida statute imposes a lifetime ban on all felons with no

exceptions, and for judges to rewrite the statute to conform to the

Second Amendment would be impossible — it not for the courts to

determine in the first instance who should or should not enjoy the

full protections of the Second Amendment.

C. Petitioner cannot agree with respondent’s assertions (Br. in

Op. 15–17) that such a statute conforms to the historical

background to the Second Amendment.

It is inarguably the case that the “first federal statute

disqualifying felons from possessing firearms was not enacted until

1938.” United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010).

And as respondent admits, Florida’s ban (Br. in Op. 14) was not

enacted until 1955. Justice Barrett 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

7

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) (Barrett J.,

dissenting), abrogated by Bruen, 597 U.S. at 18–19.

D. Petitioner focusses on the statement in District of Columbia

v. Heller, 554 U.S. 570 (2008), that “nothing in our opinion should

be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill ....” Id. at 626–

27. But this dicta in Heller is not dispositive. That case did not

involve anything about convicted felons.

Similarly, respondent’s reliance on the reference to “lawabiding, responsible citizens” in Bruen, id. at 26, is beside the point

here — Bruen did not purport to draw a line as to who is excluded

from the protections of the Second Amendment. “Our holding

decides nothing about who may lawfully possess a firearm or the

requirements that must be met to buy a gun.” Id. at 72 (Alito, J.,

concurring).

8

Bruen held unconstitutional a New York law presuming that

persons did not have the right to possess a firearm, and providing

that they could enjoy the full protections of the Second Amendment

only if they satisfied a state agent of their need to possess a firearm.

The law violated the right of the people to bear arms by purporting

to limit the right only to persons deemed fit by the state.

Florida has carved out an exception to the right to bear arms

that applies to almost 10% of the state’s adult population, and this

without a firm basis in the historical tradition of firearm regulation

at the time of the Second Amendment’s ratification or, for that

matter, of the Fourteenth Amendment’s. The Court should accept

jurisdiction to put an end to this unconstitutional infringement on

the Second Amendment.

The reasoning of Williams v. Florida has been rejected,

and the case should be overruled.

A. As in the other points, respondent says (Br. in Op. 8) that

Petitioner failed to preserve this issue for appeal so that there is no

basis for certiorari review. It does not dispute, however, that the

waiver of a trial by a panel comprised of a less-than-lawful number

of jurors is invalid unless personally made by the defendant.

9

Compare Blair v. State, 698 So. 2d 1210, 1217 (Fla. 1997) (finding

defendant’s agreement to verdict by five-member jury valid because

it was made in a colloquy with the court “including a personal onthe-record waiver sufficient to pass muster under the federal and

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

his 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.”) to Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA

1998) (reversing on grounds of fundamental error where defendant

was tried by five-member jury and judge did not inform the

defendant of his right to six-person jury).

B. Despite some hunt-and-peck efforts in that direction (Brief

in Op. 22–25), respondent does not seriously dispute that “a

mountain of evidence suggests that, both at the time of the

Amendment’s adoption and for most of our Nation’s history, the

right to a trial by jury for serious criminal offenses meant a trial

before 12 members of the community — nothing less.” Khorrami v.

Arizona, 598 U.S. — (2022) (Gorsuch, J., dissenting from denial of

certiorari). To enforce the Sixth Amendment as understood at the

10

time of its ratification requires trial by a jury of twelve.

C. Perhaps without intending to do so, respondent highlights a

central problem with Williams v. Florida, 399 U.S. 78 (1970).

Williams rejected the historical background of the Sixth Amendment

and turned again to social science research as to comparative

merits of six and twelve member juries. No more than eight years

later, the Court noted that, Williams notwithstanding, social science

shows that twelve-member juries are considerably more accurate

than six-member juries. See Ballew v. Georgia, 435 U.S. 223, 234–

39 (1978). Respondent now sets out (Br. in Op. 28–29) its own

catalog of social science by “some scholars,” detailing studies

which, it says, supports Williams.

Hence the problem: it makes little sense for the meaning of the

constitution to fluctuate in the uncertain winds of social science

research untethered from the firm historical context at the time of

ratification. To rescue the Sixth Amendment from such a fate, the

Court should grant review to restore the Sixth Amendment to its

historical form of a jury of twelve.

D. Respondent also raises a makeweight argument that the

Court should allow Florida’s continuing violation of the Sixth

11

Amendment because it would cost it too much to conform to the

right to a jury of twelve. Well, it is Florida that decided at the dawn

of the Jim Crow era to undo the right to a jury of twelve, and it

must inevitably pay the price for its commitment to the

continuation of this practice.

In making this argument, respondent admits (Br. in Op. 32)

that there are 5000 appeals pending in Florida — in virtually all of

those cases the defendant has been deprived of the foundational

right to a twelve-member jury.

CONCLUSION

For the foregoing reasons and those stated in the petition, it is

respectfully submitted that the petition for a writ of certiorari

should be granted.

Respectfully submitted,

DAN EISINGER

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

12

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

13