Petition for Writ of Certiorari — Felix Pusey, Petitioner v. Florida
Supreme Court briefFeb 13, 2025
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No. __________
_________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________________
FELIX OMAR PUSEY,
Petitioner,
v.
THE STATE OF FLORIDA,
Respondent.
______________________________________________
On Petition for a Writ of Certiorari
to Florida’s Fifth District Court of Appeal
______________________________________________
PETITION FOR WRIT OF CERTIORARI
_______________________________________
JESSICA J. YEARY
Public Defender
Second Judicial Circuit of Florida
BARBARA BUSHARIS
Assistant Public Defender
Counsel of Record for Pusey
Member of the Bar of this Court
Second Judicial Circuit of Florida
301 S. Monroe St., Suite 401
Tallahassee, FL 32301
(850) 606-8500
victor.holder@flpd2.com
QUESTIONS PRESENTED
1. Whether section 790.23(1)(b), Florida Statutes, which criminalizes the possession
and ownership of a firearm by people under the age of 24 who have previously been
adjudged delinquent for a felony offense as a juvenile, violates the Second
Amendment.
2. Whether the Sixth Amendment requires a twelve-person jury to try a criminal
defendant accused of a felony offense.
3. Whether the imposition of a lengthy mandatory minimum prison sentence upon a
juvenile offender violates the Eighth Amendment.
2
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED .................................................................................. 2
TABLE OF AUTHORITIES ...................................................................... ……....4
JURISDICTION…………………………………………………………….……....8
CONSTITUTIONAL PROVISIONS INVOLVED………...…………………….....8
STATEMENT OF THE CASE………………………………………………….....10
REASONS FOR GRANTING THE PETITION…………………………………..12
I. The statute under which Pusey was convicted, section
790.23(1)(b), Florida Statutes, violates the Second Amendment..…….........12
II. Florida violated Pusey’s Sixth and Fourteenth Amendment
rights when Pusey was convicted by a jury of less than twelve
members……………………………………………………………………..24
III. Florida’s imposition of a twenty-year minimum mandatory
sentence for a juvenile offender was unconstitutional under
the Eighth and Fourteenth Amendments.....................…………………...…38
CONCLUSION………………………………………………………………….....41
INDEX TO APPENDICES………………………………………………………...43
3
TABLE OF AUTHORITIES
CASES
PAGE(S)
Apodaca v. Oregon, 406 U.S. 404 (1972)…………….……........................25, 33, 34
Apprendi v. New Jersey, 530 U.S. 466 (2000)………………….……………..28, 29
Ballew v. Georgia, 435 U.S. 223 (1978)…………………………………...26-30, 32
Blair v. State, 698 So. 2d 1210 (Fla. 1997)………………………………………..30
Blakely v. Washington, 542 U.S. 296 (2004)………………………………...........29
Burch v. Louisiana, 441 U.S. 130 (1979)…………………………………….........27
Cunningham v. Florida, 602 U.S. ___ (2024)………………………………….36, 37
Delancy v. Tucker, 88 So. 3d 1036 (Fla. 1st DCA 2012)………………………….12
District of Columbia v. Heller, 554 U.S. 570 (2008)…………………………..12-22
Drummond v. Robinson, 9 F.4th 217 (CA3 2021)………………………………...19
Fraser v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
672 F.Supp. 3d 118 (E.D. Va. 2023)…………………………………….….14
Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008)………………………...30, 32
Graham v. Florida, 560 U.S. 48 (2010)……………………………………………38
Jackson v. State, 926 So. 2d 1262 (Fla. 2006)………………………………………8
Johnson v. Louisiana, 406 U.S. 356 (1972)………………………………..25, 33, 34
Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA 2017)……………………………...33
McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)………………12, 13, 18, 23
4
Miller v. Alabama, 567 U.S. 460 (2012)…………………………………………..38
Montgomery v. State, 230 So. 3d 1256 (Fla. 5th DCA 2017)……………………..40
New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)….12-23
Phillips v. State, 316 So. 3d 779 (Fla. 1st DCA 2021)…………………………….34
Ramos v. Louisiana, 140 S.Ct. 1390 (2020)…………………………………....33-34
Range v. Att’y Gen., 69 F.4th 96 (3d Cir. 2023)…………………………………..17
Simpson v. State, 368 So. 3d 513 (Fla. 5th DCA 2023)…………………………...17
State v. Houston-Sconiers, 188 Wash. 2d 1, 391 P.3d 409 (2017)………………...39
State v. Lyle, 854 N.W.2d 378 (Iowa 2014)……………………………………….40
Thompson v. State of Utah, 170 U.S. 343 (1898)………………………….35, 36, 37
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)……….18
Williams v. Florida, 399 U.S. 78 (1970)……………………….………………24-37
United States v. Stevens, 559 U.S. 460 (2010) ……………………………………19
CONSTITUTIONAL PROVISIONS
PAGE(S)
Second Amendment, United States Constitution……………………….. ….8, 12-23
Sixth Amendment, United States Constitution………........... ………………8, 24-37
Eighth Amendment, United States Constitution………………………… ….8, 38-41
Fourteenth Amendment, United States Constitution……...............................9, 24-41
5
STATUTES
PAGE(S)
Section 790.23(1)(b), Florida Statutes……………………………………….9, 12-23
6
PETITION FOR WRIT OF CERTIORARI
Felix Omar Pusey petitions for a writ of certiorari to review the decision of
Florida’s Fifth District Court of Appeal.
OPINIONS BELOW
Following Pusey’s convictions and sentence, Pusey appealed to Florida’s
Fifth District Court of Appeal. On October 29, 2024, the Fifth District issued a per
curiam opinion affirming Petitioner’s convictions and sentences.
The Fifth
District’s opinion did not explain its reasoning for affirming Petitioner’s
convictions and sentences. Petitioner timely filed a motion for written opinion
and/or to certify a question of great public importance so that he could petition the
Florida Supreme Court for certiorari review. The Fifth District denied the motion
on November 15, 2024. A copy of the opinion, motion for written opinion and/or to
certify a question of great public importance, and the order denying is attached as
Appendix A, B, and C.
7
JURISDICTION
The Fifth District Court of Appeal affirmed Pusey’s convictions and
sentences without written opinion. The Florida Supreme Court has no discretionary
jurisdiction to review a per curiam affirmance without written opinion. See Jackson
v. State, 926 So. 2d 1262, 1265 (Fla. 2006). The jurisdiction of this Court is
invoked under 28 U.S.C. ' 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Second Amendment to the United States Constitution 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.
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the state and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
The Eighth Amendment to the United States Constitution provides:
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
8
The Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
Section 790.23(1)(b), Florida Statutes provides:
(1) It is unlawful for any person to own or to have in his
or her care, custody, possession, or control any firearm,
ammunition, or electric weapon or device, or to carry a
concealed weapon, including a tear gas gun or chemical
weapon or device, if that person has been:
(b) Found, in the courts of this state, to have
committed a delinquent act that would be a
felony if committed by an adult and such
person is under 24 years of age.
9
STATEMENT OF THE CASE
The State of Florida charged Pusey with two counts of attempted murder in
the first-degree, one count of possession of a firearm by a juvenile delinquent less
than twenty-four years of age who had previously been found to have committed a
felony act as a juvenile, and one count of discharging a firearm from a vehicle.
Pusey was a juvenile on the date the offenses were allegedly committed.
At trial, the State presented evidence that Pusey possessed a firearm and
discharged the firearm in the direction of two alleged victims from a vehicle.
Pusey’s defense was that he fired the gun in self-defense because one of the alleged
victims was approaching Pusey’s vehicle in a threatening manner and appeared to
be pulling a gun from his pocket.
A six-person jury convicted Pusey of one count of attempted first-degree
murder, one count of attempted second-degree murder, one count of possession of a
firearm by a juvenile delinquent less than 24 years of age found to have previously
committed a felony act, and one count of discharging a firearm from a vehicle.
Pusey was sentenced to forty years in prison with a twenty-year mandatory
minimum term for discharging a firearm pursuant to section 775.087(2)(a)2, Florida
Statutes. Petitioner is eligible for a judicial sentence review after twenty-five years,
pursuant to section 921.1402(2)(b), Florida Statutes.
10
Pusey raised five issues on appeal to Florida’s Fifth District: (1) that there
was insufficient evidence to sustain the attempted murder convictions; (2) that
section 790.23(1)(b), Florida Statutes, the statute that criminalized the possession of
a firearm by a former juvenile delinquent under the age of 24, violated the Second
Amendment; (3) that his trial by a six-person jury violated the Sixth and Fourteenth
Amendments; (4) that state law required a judicial sentence review after twenty
years instead of twenty-five years; and (5) that the imposition of the twenty-year
mandatory minimum sentence for discharging a firearm violated the Eighth and
Fourteenth Amendments because Pusey was a juvenile when the offenses occurred
and the trial court had no discretion to consider his individual characteristics and
circumstances in order to impose a sentence less than the twenty-year minimum
mandatory term.
11
REASONS FOR GRANTING THE PETITION
I. The statute under which Pusey was convicted,
section 790.23(1)(b), Florida Statutes, violates the
Second Amendment.
In Florida, the facial unconstitutionality of a statute may be raised for the first
time on appeal. See, e.g., Delancy v. Tucker, 88 So. 3d 1036 (Fla. 1st DCA 2012).
Petitioner’s trial attorney did not raise this issue in the trial court. The issue was
raised for the first time on appeal.
The Second Amendment of the United State’s Constitution 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.” U.S. Const. Amend. II. The
Fourteenth Amendment applies the Second Amendment to the State of Florida.
A new standard for Second Amendment cases has emerged, calling the
constitutionality of section 790.23(1)(b) into question. See New York State Rifle &
Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111, 2156 (2022).
Bruen held
unconstitutional New York’s 1911 Sullivan Act, which required a license and
demonstration of a “proper cause” to possess and carry a concealable firearm. Id.
This opinion clarified the Supreme Court’s understanding of the Second
Amendment from the previous decisions in District of Columbia v. Heller, 554 U.S.
570 (2008), and McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
Importantly, Bruen abandoned the two-part approach to Second Amendment cases
12
that had been applied by courts following Heller and McDonald. Bruen at 2126. In
doing so, Bruen gave a clear, unambiguous standard for courts to apply in Second
Amendment cases:
[W]hen 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.’
Id.
Bruen reiterated that the standard for applying the Second Amendment is as
follows:
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.”
Bruen at 2129–30.
13
“In other words, Bruen requires two distinct analytical steps.” Fraser v.
Bureau of Alcohol, Tobacco, Firearms & Explosives, 672 F.Supp. 3d 118, 126
(E.D. Va. 2023). “First, it must be determined if ‘the Second Amendment's plain
text covers an individual's conduct.’” Id. quoting Bruen at 2126. “If it does, ‘the
Constitution presumptively protects that conduct.’” Id. “Second, if the conduct is
presumptively protected, ‘the government must demonstrate that the regulation is
consistent with this Nation's historical tradition of firearm regulation.’” Id. “To do
so, the Government ‘must affirmatively prove that its firearms regulation is part of
the historical tradition that delimits the outer bounds of the right to keep and bear
arms.’” Id. quoting Bruen at 2127. Any law, regulation, or government policy
affecting the “right of the people to keep and bear arms” can only be constitutional
if the government demonstrates an analogous restriction deeply rooted in American
history, evidenced by historical materials contemporaneous with the adoption of the
Bill of Rights in 1791. Bruen at 2129–30. “When establishing that analytical
construct, Bruen explicitly prohibited courts from engaging in any means-end
scrutiny.” Fraser at 5. “The Supreme Court also ‘expressly rejected the application
of any judge-empowering interest-balancing inquiry that asks whether the statute
burdens a protected interest in a way or to an extent that is out of proportion to the
statute's salutary effects upon other important governmental interests.’” Id.
14
quoting Bruen at 2129.
“Bruen marks a sea-change in Second Amendment law,
throwing many prior precedents into question.” Id. at 126. See (“Bruen clearly
fundamentally
changed
our
analysis
of
laws
that
implicate
the Second Amendment”).
A. The Second Amendment’s plain text covers the conduct proscribed in section
790.23(1)(b), Florida Statutes.
Section 790.23(1)(b) makes it “unlawful for any person to own or to have in
his or her care, custody, possession, or control any firearm” if that person has been
“found, in the courts of this state, to have committed a delinquent act that would be
a felony if committed by an adult and such person is under 24 years of age.”
§790.23(1)(b), Fla. Stat. Thus, a person under the age of 24 years of age who has
previously been found to have committed, as a juvenile, a delinquent act that would
have been a felony cannot possess a firearm, even for self-defense.
This statute impinges on conduct protected by the Second Amendment’s
plain text. The Second Amendment’s reference to “arms” obviously contemplates
firearms, and this “reference to ‘arms’ does not apply ‘only [to] those arms in
existence in the 18th century.’” Bruen at 2132, quoting Heller at 582. The
“Amendment's operative clause— ‘the right of the people to keep and bear Arms
shall not be infringed’— ‘guarantee[s] the individual right to possess and carry
15
weapons in case of confrontation’ that does not depend on service in the militia.”
Id. at 2127, quoting Heller at 592. The holder of the right is “the people.” Heller at
581.
The right to “keep” arms was “simply a common way of referring to
possessing arms, for militiamen and everyone else.” Id. at 583 (emphasis in
original). The right to “bear arms” refers to the right to “wear, bear, or carry ...
upon the person or in the clothing or in a pocket, for the purpose ... of being armed
and ready for offensive or defensive action in a case of conflict with another
person.” Id. at 584.
Persons under the age of 24 who have previously been found to have
committed a delinquent act that would have been a felony if committed by an adult
are part of “the people” for constitutional purposes. They retain First Amendment
and Fourth Amendment protections for their freedom of speech, freedom of
assembly, freedom of religion, and freedom from unreasonable search and seizure
as part of “the people.” They are eligible to vote assuming they are at least eighteen
years of age. They are not convicted felons. The Supreme Court has noted that “in
all six other provisions of the Constitution that mention ‘the people,’ the term
unambiguously refers to all members of the political community, not an unspecified
subset.” Heller at 580.
There is “a strong presumption that it belongs to all
Americans.” Id. at 581. “[W]here the Constitution extends its protections to only a
16
subset of “the people” and excludes those convicted of crimes, it says so.” Simpson
v. State, 368 So. 3d 513, 524-25 (Fla. 5th DCA 2023) (Jay, J. concurring). See
Amend. XIV, section 2, U.S. Const. (exempting states’ disenfranchisement “for
participation in rebellion, or other crime,” from its reduced-representation penalty.)
In his concurring opinion in Simpson, Judge Jay opined that an unincarcerated felon
is a member of “the people” for Second Amendment purposes. Simpson at 30,
citing Range v. Att’y Gen., 69 F.4th 96, 103 (3d Cir. 2023) (en banc). If unincarcerated convicted felons are members of “the people,” then certainly people
less than 24 years of age who had previously been found to have committed a
delinquent act that would have been a felony if committed by an adult retain their
second amendment constitutional protections as members of “the people.” The
State alleged that Petitioner had been adjudicated delinquent as a juvenile of
burglary of a structure, a non-violent low-level felony.
The plain text of the Second Amendment therefore protects the right to
possess arms of persons under the age of 24 who have previously been adjudicated
delinquent as a juvenile of an offense that would have been a felony. A blanket
prohibition on this class of “the people” from possessing firearms for any
potentially
lawful purposes,
including self-defense,
17
invokes
the
Second
Amendment. This is because “individual self-defense is ‘the central component’ of
the Second Amendment right.” McDonald at 767, quoting Heller at 599.
It is evident that the statute in question prohibits conduct covered by the plain
text of the Second Amendment: the keeping and bearing of arms by a class of “the
people.”
B. The State cannot meet its burden of demonstrating that a prohibition for
people under the age of 24 who have previously been found to have
committed a delinquent act as a juvenile that would have been a felony if
committed as an adult is part of this Nation’s historical tradition of firearms
regulation.
The United States Supreme Court has held that the State has the burden to
prove the constitutionality of a statute infringing on a constitutional right. Bruen at
2130; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803,
816 (2000) (“[w]hen the Government restricts speech, the Government bears the
burden of proving the constitutionality of its actions.”). Bruen used this approach
for cases invoking the Second Amendment. Bruen at 2130.
[T]he burden falls on [the state] to show that [the statute]
is consistent with this Nation's historical tradition of
firearm regulation. Only if [the state] carr[ies] that burden
can [it] show that the pre-existing right codified in the
Second Amendment, and made applicable to the States
through the Fourteenth, does not protect [the] course of
conduct.
18
Bruen at 2135.
“[T]o carry that burden, the government must generally point to historical
evidence about the reach of the [] Amendment's protections.” Bruen at 2130 (citing
United States v. Stevens, 559 U.S. 460, 468–471 (2010)). This historical approach
requires analogical reasoning to determine whether a modern regulation is
“relatively similar” to a ratification-era historical analog. Id. at 2132 (quoting C.
Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). On this,
the Court said:
To be clear, analogical reasoning under the Second
Amendment is neither a regulatory straightjacket nor a
regulatory blank check. On the one hand, courts should
not “uphold every modern law that remotely resembles a
historical analogue,” because doing so “risk[s]
endorsing outliers that our ancestors would never have
accepted.” Drummond v. Robinson, 9 F.4th 217, 226
(CA3 2021). On the other hand, analogical reasoning
requires only that the government identify a wellestablished and representative historical analogue, not a
historical twin. So even if a modern-day regulation is not
a dead ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.
Id. at 2133 (additional emphasis added).
While discussing historical analysis to show whether a firearm regulation is
part of this Nation’s historical tradition of firearm regulation, Bruen highlighted that
“not all history is created equal.” Id. at 2136. “The Second Amendment was
19
adopted in 1791; the Fourteenth in 1868.” Id. “Historical evidence that long
predates either date may not illuminate the scope of the right if linguistic or legal
conventions changed in the intervening years.” Id. Similarly, courts “must also
guard against giving postenactment history more weight than it can rightly bear.”
Id. “[P]ost-Civil War discussions of the right to keep and bear arms [which] “took
place 75 years after the ratification of the Second Amendment, [] do not provide as
much insight into its original meaning as earlier sources.” Id. at 2137. For example,
in Heller, the Court’s interest in historical evidence from the “mid-to-late-19thcentury commentary was secondary” and was considered “only after surveying
what it regarded as a wealth of authority for its reading—including the text of the
Second Amendment and state constitutions.” Bruen at 2137. The “19th-century
evidence was treated as mere confirmation of what the Court thought had already
been established.” Id. (internal quotation omitted).
Consequently, “late-19th-
century evidence cannot provide much insight into the meaning of the Second
Amendment when it contradicts earlier evidence.” Id. at 2154.
Bruen mentioned the existence of a scholarly debate as to whether courts
should primarily rely on the historical understanding of rights at the founding in
1791 or when the Fourteenth Amendment was adopted in 1868. Id. at 2138. The
court did not resolve that debate, finding that “the public understanding of the right
20
to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the
same with respect to public carry.” Id. However, it is clear that the meaning of an
amendment, including the Second Amendment ratified in 1791, is “fixed according
to the understandings of those who ratified it.” Id. at 2132.
Therefore, the State has the burden to demonstrate that Florida’s prohibition
on forearm possession in section 790.23(1)(b) is consistent with the Nation's
historical tradition of firearm regulation. The State must show that the blanket
prohibition on keeping and bearing firearms by this particular class of people is a
part of “American tradition,” stemming from those who ratified the Second
Amendment in 1791. Id. at 2156.
Bruen held that “[t]he Second Amendment guaranteed to ‘all Americans’ the
right to bear commonly used arms in public subject to certain reasonable, welldefined restrictions.” Id., quoting Heller at 581. Based on the historical record
presented in Bruen, the Court stated that “[t]hose restrictions, for example, limited
the intent for which one could carry arms, the manner by which one carried arms, or
the exceptional circumstances under which one could not carry arms, such as before
justices of the peace and other government officials.” Id. Consequently, the Court
found no justification in American tradition for citizens to “demonstrate a special
need for self-protection distinguishable from that of the general community,” which
21
New York required to obtain a carry permit. Id. As a result, the Court overturned
New York’s 1911 Sullivan Law. Courts should “not ‘stake [an] interpretation of
the Second Amendment upon a single law, in effect in a single [State], that
contradicts the overwhelming weight of other evidence regarding the right to keep
and bear arms for defense’ in public.” Bruen at 2153, quoting Heller at 632.
There is no ratification-era tradition or historical support for a legislative
power to prohibit those under the age of 24, who “have been found, in the courts of
this state, to have committed a delinquent act that would be a felony if committed
by an adult,” from possessing firearms. There is a dearth of historical evidence for
such a ban.
C. Section 790.23(1)(b), Florida Statutes, is facially unconstitutional under the
Bruen standard.
Here, the State alleged in its charging document that Pusey possessed a
firearm. Such an act is commonly done by Americans for self-defense or other
lawful purposes.1 Such implements are in common lawful use and are beneficial to
the preexisting, natural right of self-preservation. See Heller at 594. Pusey testified
1
See Bruen at 2158-59 (Alito J., concurring) (noting that “[o]rdinary citizens
frequently use firearms to protect themselves from criminal attack. According to
survey data, defensive firearm use occurs up to 2.5 million times per year.”
22
at trial that he carried the firearm for protection because he had seen numerous
people shot and killed in his neighborhood.
The State has the burden of proving that the prohibition on those under the
age of 24 who “have been found, in the courts of this state, to have committed a
delinquent act that would be a felony if committed by an adult” from possessing
firearms is a part of the historical tradition of firearms regulation in this country.
The State cannot carry this burden. Section 790.23(1)(b) cannot survive the test
outlined by the Supreme Court in Bruen.
The constitutional right to keep and bear arms “is not ‘a second-class right,
subject to an entirely different body of rules than the other Bill of Rights
guarantees.’” Bruen at 2156, quoting McDonald at 780. If the government enacted a
law prohibiting those under the age of 24 who “have been found in the courts of this
state to have committed a delinquent act that would be a felony if committed by an
adult” from engaging in unpopular speech or the free exercise of religion it would
be no less repugnant to the Constitution than the law here. This Court should find
that section 790.23(1)(b) is facially unconstitutional post-Bruen.
23
II. Florida violated Pusey’s Sixth and Fourteenth
Amendment rights when Pusey was convicted by a
jury of less than twelve members.
This case tests whether the Court’s holding in Williams v. Florida, 399 U.S.
78 (1970), that the Sixth Amendment right to a trial by jury does not compel a
twelve-member jury is still tenable following the Court’s more recent decisions in
which it has discarded the functional approach to jury trials in favor of the practice
of trial by jury as it existed at common law. Petitioner raised this issue for the first
time on appeal.
In Williams, the Court dismissed the common law practice of impaneling a
jury of twelve members when it determined “that the 12-man panel is not a
necessary ingredient of ‘trial by jury,’ and that [the] refusal to impanel more than
the six members provided for by Florida law did not violate [a defendant’s] Sixth
Amendment rights as applied to the States through the Fourteenth [Amendment].”
Williams at 86. The Court undertook a functional analysis of jury size, concluding
that twelve is no better than six for reaching a reliable verdict in criminal cases. Id.
at 99-100.
Thereafter, the Court again rejected historical norms in assessing the issue of
jury unanimity in state court criminal proceedings. Much like its analysis in
Williams, the Court concluded that jury unanimity is not required under the Sixth
24
Amendment – at least when juries are ten or larger – because it does not materially
contribute to the exercise of [jurors’] commonsense judgment.” Apodaca v. Oregon,
406 U.S. 404, 410 (1972). Applying a “functional” approach again, a plurality
“perceive[d] no difference between juries required to act unanimously and those
permitted to convict or acquit by votes of 10 to two or 11 to one” such that “the
interest of the defendant in having the judgment of his peers interposed between
himself and the officers of the State who prosecute and judge him is equally well
served” whether unanimity is required or not. Id. at 410-11. The various opinions,
concurring and dissenting, reflected no consensus on a coherent analytical
approach.
In Johnson v. Louisiana, 406 U.S. 356, 364 (1972), the Court addressed a
tiered jury system where “less serious crimes [are] tried by five jurors with
unanimous verdicts, more serious crimes required the assent of nine of 12 jurors,
and for the most serious crimes a unanimous verdict of 12 jurors is stipulated.” In
upholding a 9-3 verdict, the Court concluded that the differential jury system served
a rational interest, the state legislature “obviously intend[ing] to vary the difficulty
of proving guilt with the gravity of the offense and the severity of the punishment.”
Id. at 365.
25
The Court invalidated a five-member jury in Ballew v. Georgia, 435 U.S. 223
(1978), but no coherent framework emerged for analyzing jury size under the Sixth
Amendment. Two justices (Blackmun and Stevens) posited that juries of less than
six members substantially threatened the constitutional guarantee of the jury trial
right, notwithstanding the cost-saving and time-saving arguments that Georgia
advanced. Their analysis reflected that most of the major premises underlying the
functional approach in Williams were inaccurate. Justice White asserted that the
requirement that a jury be a fair cross-section of the community would be violated
with juries of less than six members. And three justices (Chief Justice Burger and
Justices Powell and Rehnquist) agreed that a conviction for serious offenses by
juries of five members “involves grave questions of fairness” and that “the line
between five- and six-member juries is difficult to justify, but a line has to be drawn
somewhere if the substance of jury trial is to be preserved.” Id. at 245-46. Finally,
three justices (Brennan, Stewart, and Marshall) concurred only in the holding that
“the Sixth and Fourteenth Amendments require juries in criminal trials to contain
more than five persons.” Id. at 246. The Ballew Court raised five key inadequacies
of a smaller jury:
First, recent empirical data suggest that progressively
smaller juries are less likely to foster effective group
deliberation. At some point, this decline leads to
inaccurate fact-finding and incorrect application of the
26
common sense of the community to the facts. Generally, a
positive correlation exists between group size and the
quality of both group performance and group productivity.
…
Second, the data now raise doubts about the accuracy of
the results achieved by smaller and smaller panels.
Statistical studies suggest that the risk of convicting an
innocent person… rises as the size of the jury diminishes.
…
Third, the data suggest that the verdicts of jury
deliberation in criminal cases will vary as juries become
smaller, and that the variance amounts to an imbalance to
the detriment of one side, the defense.
…
Fourth, what has just been said about the presence of
minority viewpoint as juries decrease in size foretells
problems not only for jury decision making, but also for
the representation of minority groups in the community.
The Court repeatedly has held that meaningful community
participation cannot be attained with the exclusion of
minorities or other identifiable groups from jury service.
… The exclusion of elements of the community from
participation contravenes the very idea of a jury…
composed of the peers or equals of the person whose
rights it is selected or summoned to determine.
…
Fifth, several authors have identified in jury research
methodological problems tending to mask differences in
the operation of smaller and larger juries such that
standard variances in smaller juries were greater.
Ballew at 232-39.
In Burch v. Louisiana, 441 U.S. 130 (1979), the Court again noted the lessthan-satisfactory nature of its functional approach, this time considering whether a
27
conviction for a non-petty state offense by a non-unanimous six-person jury was
constitutional. The Court stated:
As in Ballew, we do not pretend the ability to discern a
priori a bright line below which the number of jurors
participating in the trial or in the verdict would not
permit the jury to function in the manner required by our
prior cases. But having already departed from the strictly
historical requirements of jury trial, it is inevitable that
lines must be drawn somewhere if the substance of the
jury trial right is to be preserved.
Id. at 137.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court rejected a
functional approach to the right to a jury trial in favor of the “practice” of trial by
jury as it existed “at common law”:
As we have, unanimously, explained . . . the historical
foundation for our recognition of these principles extends
down centuries into the common law. “[T]o guard against
a spirit of oppression and tyranny on the part of rulers,”
and “as the great bulwark of [our] civil and political
liberties,” 2 J. Story, Commentaries on the Constitution of
the United States 540-541 (4th ed. 1873), trial by jury has
been understood to require that “the truth of every
accusation, whether preferred in the shape of indictment,
information, or appeal, should afterwards be confirmed by
the unanimous suffrage of twelve of [the
defendant’s]equals and neighbours . . . ” 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769). See
also Duncan v. Louisiana, 391 U.S. 145, 151-154 (1968).
Apprendi at 477.
28
In Blakely v. Washington, 542 U.S. 296 (2004), in which the Court applied
Apprendi and clarified the definition of the “statutory maximum” for any offense,
the Court repeated its reference to the “suffrage of twelve” and then re-emphasized
the critical nature of trial by jury:
Our commitment to Apprendi in this context reflects not
just respect for longstanding precedent, but the need to
give intelligible content to the right of jury trial. That right
is no mere procedural formality, but a fundamental
reservation of power in our constitutional structure. Just
as suffrage ensures the people’s ultimate control in the
legislative and executive branches, jury trial is meant to
ensure their control in the judiciary. Apprendi carries out
this design by ensuring that the judge’s authority to
sentence derives wholly from the jury’s verdict. Without
that restriction, the jury would not exercise the control
that the Framers intended.
Id. at 305-06.
The Court in Blakely focused on “the Framers’ paradigm for criminal
justice.” Id. at 313. This shift in constitutional perspective calls into question the
Court’s holding in Williams, which was based on the functional approach to the
right to a jury trial.
Florida courts have also questioned the Williams holding.
The Florida
Supreme Court noted that the empirical studies Ballew relied upon actually
supported the use of a twelve-person jury:
29
Interestingly, this analysis and the social studies on jury
size and small group dynamics cited by the Court also
provide support for the traditional twelve-person jury, a
requirement the Court had refused to mandate in Williams
v. Florida.
Blair v. State, 698 So. 2d 1210, 1216 (Fla. 1997). Building upon the Court’s
Ballew holding, Florida’s Second District Court of Appeal cited to additional
empirical studies and other scholarly sources demonstrating the superiority of the
twelve-person jury in Gonzalez v. State, 982 So. 2d 77, 82-84 (Fla. 2d DCA 2008):
Mr. Gonzalez is not alone in arguing that advances in the
understanding of small group decision-making and trends
in the law of other states support another examination of
the Williams rationale. In 1995, the Committee on the
Rules of Practice and Procedure of the Judicial
Conference of the United States proposed that the Federal
Rules of Civil Procedure be amended to require twelveperson juries in civil cases. See Proposed Amendments to
the Federal Rules of Appellate, Bankruptcy, Civil,
Criminal Procedure and Evidence, 163 F.R.D. 91
(transmitted by the Committee on the Rules of Practice
and Procedure of the Judicial Conference of the United
States for Notice and Comment, September 1995). The
text of the proposed committee note to follow the
proposed amended rule explained:
Much has been learned since 1973 about the
advantages of twelve-member juries.
Twelve-member juries substantially increase
the representative quality of most juries,
greatly improving the probability that most
juries will include members of minority
groups. The sociological and psychological
dynamics of jury deliberation also are
30
strongly influenced by jury size. Members of
a twelve-person jury are less easily
dominated by an aggressive juror, better able
to recall the evidence, more likely to rise
above the biases and prejudices of individual
members, and enriched by a broader base of
community experience.
The
wisdom
enshrined in the twelve-member tradition is
increasingly demonstrated by contemporary
social science. Id. at 147.
On February 14, 2005, the American Bar Association
House of Delegates approved Principles for Juries and
Jury Trials, a document prepared by the American Jury
Project after an October 2004 symposium. Principle 3 is
entitled “Juries Should Have Twelve Members” and calls
for twelve-person juries in any criminal case that might
result in a penalty of confinement of over six months.
Moreover, as mentioned at the beginning of this opinion,
Florida is one of only two states that now consistently
allow serious felony cases to be decided by juries with as
few as six members. See David B. Rottman & Shauna M.
Strickland, State Court Organization 2004, United States
Department of Justice, Bureau of Justice Statistics, Table
42
at
233,
available
at
http://www.ojp.
usdoj.gov/bjs/abstract/sco04.htm (last visited Mar. 18,
2008).
The extensive development in the study of small group
decision-making since 1970 is well beyond the scope of
this opinion. There clearly is more scientific evidence
today than in 1970 that a twelve-person jury may be
superior to a six-person jury to accomplish the functions,
purposes, and goals identified by the Williams court.
Ensuing scholarship has criticized the empirical
authorities
upon
which
the Williams court
relied, see Robert H. Miller, Comment, Six of One Is Not
a Dozen of the Other: A Re-Examination of Williams v.
31
Florida and the Size of State Criminal Juries, 146 U. Pa.
L. Rev. 621, 652 (Jan. 1998), and collected more
empirical studies that contradict the conclusions of the
Court, see, e.g., Michael Saks & Mollie Weighner
Marti, A Meta-Analysis of the Effects of Jury Size, 21 L. &
Hum. Behav. 451 (1997). The scholarship and evidence in
this regard, however, are not undisputed, and the various
scientific theories are not necessarily cohesive.
In Mr. Miller's article, Six of One is Not a Dozen of the
Other: A Re-examination of Williams v. Florida and the
Size of State Criminal Juries, the author concludes:
As the Ballew Court admitted, we now know
that six- and twelve-person juries are not
functionally
equivalent,
as
the Williams Court assumed. We know that
recall of facts, testimony, and in-court
observations are compromised significantly
when a six-person jury is used in place of a
twelve-person jury. We know that the rate of
hung juries declines and the rate of
conviction rises when smaller juries are used.
We know that minority representation,
community representativeness, and quality of
deliberation all decrease when six-person
juries are used. Finally, we know that sixperson juries are less reliable than twelveperson juries, because they are less consistent
in rulings on similar cases and because they
decide all cases at greater variance from
larger community preferences.
146 U. Pa. L. Rev. at 682-83 (footnotes omitted).
Gonzalez at 82-84 (footnotes omitted).
32
The Court’s holding in Ramos v. Louisiana, 140 S.Ct. 1390 (2020), continues
the Court’s trend of discarding the functional approach to jury trials and again casts
doubt on the continued viability of Williams.
Ramos held that the Sixth
Amendment right to a jury trial requires that state court verdicts in criminal cases be
unanimous, overruling contrary precedents from the early 1970s (Apodaca and
Johnson). Justice Gorsuch wrote in Ramos:
There can be no question either that the Sixth
Amendment's unanimity requirement applies to state and
federal criminal trials equally. This Court has long
explained that the Sixth Amendment right to a jury trial
is “fundamental to the American scheme of justice” and
incorporated against the States under the Fourteenth
Amendment. This Court has long explained, too, that
incorporated provisions of the Bill of Rights bear the
same content when asserted against States as they do
when asserted against the federal government. So if the
Sixth Amendment's right to a jury trial requires a
unanimous verdict to support a conviction in federal
court, it requires no less in state court.
Ramos at 1397.
“On similar reasoning, if the Sixth Amendment right to jury trial requires a
twelve-member jury to support a criminal conviction – as is done in every federal
court (and almost every state court) 2 – it isn’t much of a stretch to conclude that ‘it
2 Lessard v. State, 232 So. 3d 13, 16–17 (Fla. 1st DCA 2017) (Makar, J.,
concurring) (“The vast majority of states still choose twelve-person, unanimous
juries to convict in serious criminal cases. Forty-five states require twelve
33
requires no less in state court.’” Phillips v. State, 316 So. 3d 779, 787 (Fla. 1st DCA
2021) (J. Makar, concurring). Following Ramos, “[i]t seems a small step from the
demise of the reasoning in Apodaca and Johnson as announced in Ramos to
conclude that the reasoning in Williams, upon which both decisions relied, is also in
jeopardy.” Phillips at 788 (J. Makar, concurring). “For that reason… the issue of
jury size under the Sixth Amendment may be ripe for re-evaluation.” Id.
This case presents the Court with the opportunity to clarify its jurisprudence
regarding the Sixth Amendment’s jury size requirement for the trial of felony
offenses. The functional approach to jury size, upon which the Court’s opinion in
Williams stands, has seemingly been eroded by the Court’s more recent opinions.
The Court should now return to the longstanding precedent in place before
Williams, which focused on the meaning of the word “jury” as understood by the
founders at the time of the adoption of the Constitution:
Assuming, then, that the provisions of the constitution
relating to trials for crimes and to criminal prosecutions
apply to the territories of the United States, the next
inquiry is whether the jury referred to in the original
unanimous jurors to convict for any felony (federal felony trials require twelve
jurors); a few states permit six to eight for specified felonies.” (footnotes omitted).
The “only other state [besides Florida] with six-person juries in felony cases is
Connecticut. All other state and federal felony prosecutions require twelve-person
juries.” Alisa Smith & Michael J. Saks, The Case For Overturning Williams v.
Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L.
Rev. 441, 443 (2008).
34
constitution and in the sixth amendment is a jury
constituted, as it was at common law, of twelve persons,
neither more nor less. (Citation omitted.) This question
must be answered in the affirmative. When Magna
Charta declared that no freeman should be deprived of
life, etc., ‘but by the judgment of his peers or by the law
of the land,’ it referred to a trial by twelve jurors. Those
who emigrated to this country from England brought
with them this great privilege ‘as their birthright and
inheritance, as a part of that admirable common law
which had fenced around and interposed barriers on
every side against the approaches of arbitrary power.’
(Citation omitted.) In Bac. Abr. tit. ‘Juries,’ it is said:
‘The trial per pais, or by a jury of one's country, is justly
esteemed one of the principal excellencies of our
constitution; for what greater security can any person
have in his life, liberty, or estate than to be sure of the
being devested of nor injured in any of these without the
sense and verdict of twelve honest and impartial men of
his neighborhood? And hence we find the common law
herein confirmed by Magna Charta.’ So, in 1 Hale, P. C.
33: ‘The law of England hath afforded the best method of
trial that is possible of this and all other matters of fact,
namely, by a jury of twelve men all concurring in the
same judgment, by the testimony of witnesses viva voce
in the presence of the judge and jury, and by the
inspection and direction of the judge.’ It must
consequently be taken that the word ‘jury’ and the words
‘trial by jury’ were placed in the constitution of the
United States with reference to the meaning affixed to
them in the law as it was in this country and in England
at the time of the adoption of that instrument; and that
when Thompson committed the offense of grand larceny
in the territory of Utah – which was under the complete
jurisdiction of the United States for all purposes of
government and legislation – the supreme law of the land
required that he should be tried by a jury composed of
not less than twelve persons.
35
Thompson v. State of Utah, 170 U.S. 343, 349-50 (1898).
Justice Gorsuch, arguing the Constitution requires 12-member juries, wrote,
“Williams was wrong the day it was decided, it remains wrong today, and it impairs
both the integrity of the American criminal justice system and the liberties of those
who come before our Nation’s courts.” Khorrami v. Arizona, 143 S.Ct. 22, 23
(2022) (Gorsuch, J., dissenting from denial of certiorari). Justice Gorsuch has
recently reiterated his position that the Constitution requires a jury of twelve to try
criminal cases:
For almost all of this Nation’s history and centuries before
that, the right to trial by jury for serious criminal offenses
meant the right to a trial before 12 members of the
community. [citation omitted]. Acutely concerned with
individuals and their liberty, the framers of our
Constitution sought to preserve this right for future
generations. [citation omitted]. Yet today, a small number
of States refuse to honor its promise. Consider this case:
A Florida court sent Natoya Cunningham to prison for
eight years on the say of just six people. Florida does what
the Constitution forbids because of us. In Williams v.
Florida, this Court in 1970 issued a revolutionary
decision approving for the first time the use of 6-member
panels in criminal cases. 399 U.S. 78, 103. In doing so,
the Court turned its back on the original meaning of the
Constitution, centuries of historical practice, and a battery
of this Court’s precedents. [citation omitted]. Before
Williams, this Court had said it was not open to question
that a jury should consist of twelve. Patton v. United
States, 281 U.S. 276, 288 (1930). We had understood the
jury referred to in the original Constitution and in the
Sixth Amendment is a jury constituted, as it was at
36
common law, of twelve persons. Thompson v. Utah, 170
U.S. 343, 349 (1898). Really, given the history of the jury
trial right before Williams, it was nearly unthinkable to
suggest that the Sixth Amendment’s right to a trial by jury
is satisfied by any lesser number. Yet Williams made the
unthinkable a reality. In doing so, it substituted bad social
science for careful attention to the Constitution’s original
meaning. Pointing to academic studies, Williams tepidly
predicted that 6-member panels would probably deliberate
just as carefully as 12-member juries. [citation omitted].
But almost before the ink could dry on the Court’s
opinion, the social science studies on which it relied came
under scrutiny. [citation omitted]. Soon, the Court was
forced to acknowledge empirical data suggesting that, in
fact, smaller juries are less likely to foster effective group
deliberation and may not produce as reliable or accurate
decisions as larger ones. [citation omitted]. All in all,
Williams was an embarrassing mistake – wrong the day it
was decided.
Cunningham v. Florida, 602 U.S. ___ (2024) (Gorsuch, J., dissenting from denial of
certiorari).
The Sixth and Fourteenth Amendments to the Constitution required a twelveperson jury for trial of Petitioner’s felony offenses.
37
III. Florida’s imposition of a twenty-year minimum
mandatory sentence for a juvenile offender was
unconstitutional under the Eighth and Fourteenth
Amendments.
This case tests whether a lengthy mandatory minimum prison sentence can
be constitutionally imposed upon a juvenile offender where the sentencing court
has no discretion to consider the juvenile’s individual characteristics and
circumstances in deciding whether to impose the lengthy mandatory minimum
prison sentence.
Children are different. Miller v. Alabama, 567 U.S. 460 (2012).
That
difference has constitutional ramifications. Graham v. Florida, 560 U.S. 48, 76
(2010) (“An offender’s age is relevant to the Eighth Amendment,” so “criminal
procedure laws that fail to take defendants’ youthfulness into account at all would
be flawed.”). Juveniles are less deserving of the most severe punishments because
they have lessened culpability. Id. at 68. “As compared to adults, juveniles have a
lack of maturity and an underdeveloped sense of responsibility; they are more
vulnerable or susceptible to negative influences and outside pressures, including
peer pressure; and their characters are not as well formed.” Id. “Juvenile offenders
cannot with reliability be classified among the worst offenders.” Id. Youth is “a
time of immaturity, irresponsibility, impetuousness, and recklessness.” Miller at
476. It is “a condition of life when a person may be most susceptible to influence
38
and to psychological damage.” Id. Youth’s “signature qualities are all transient.”
Id.
“[A] sentencing rule permissible for adults may not be so for children.” Id.
at 481. “[M]andatory penalties, by their nature, preclude a sentencer from taking
account of an offender’s age and the wealth of characteristics and circumstances
attendant to it.” Id.
A mandatory sentence gives no consideration to “the
mitigating qualities of youth.” Id. at 475-76. Mandatory minimum sentencing
schemes, while constitutionally valid for imposing increased punishment for adult
offenders, should be declared unconstitutional as applied to juveniles. Sentencing
courts should have discretion to consider mitigating circumstances associated with
the youth of a juvenile defendant when fashioning a sentence. The minimum
mandatory provision prevents a sentencing judge from imposing a sentence shorter
than the minimum mandatory term even where the sentencing judge feels the
shorter term is appropriate based on the juvenile’s individualized sentencing
factors.
The Washington Supreme Court has held that mandatory minimum sentences
for juveniles violate the Eighth Amendment. State v. Houston-Sconiers, 188 Wash.
2d 1, 20, 391 P.3d 409, 420 (2017) (“[W]e see no way to avoid the Eighth
Amendment requirement to treat children differently, with discretion, and with
39
consideration of mitigating factors” when a juvenile is facing a mandatory
minimum sentence for possessing a firearm while committing an offense). The
Iowa Supreme Court has held that mandatory minimum sentences for juvenile
offenders constitute cruel and unusual punishment. State v. Lyle, 854 N.W.2d 378,
400 (Iowa 2014) (“Mandatory minimum sentences for juveniles are simply too
punitive for what we know about juveniles.”). See also State v. Taylor G., 315
Conn. 734, 110 A.3d 338 (Conn. 2015) (the legislature may wish to revisit whether
mandatory terms are appropriate for juveniles); State v. Williams-Bey, 333 Conn.
468, 477-480, 215 A.3d 711, 717-718 (Conn. 2019) (J. Ecker dissenting). Florida’s
Fifth District Court of Appeal has held that mandatory minimum prison sentences
for juvenile non-homicide offenders would be violative of the Eighth Amendment if
it were not for the availability of judicial sentence review. Montgomery v. State,
230 So. 3d 1256, 1263 (Fla. 5th DCA 2017) (“[W]e hold that the mandatory
minimum twenty-five-year mandatory minimum sentence at issue in this case does
not constitute cruel and unusual punishment when applied to a juvenile offender as
long as he or she gets the mandated judicial review.”). In Montgomery, the juvenile
was eligible for judicial sentence review before he had served all of the mandatory
minimum term.
40
Here, Pusey should have received individualized sentencing consideration
with a resulting sentence that was not predetermined by the constraints of a
twenty-year mandatory minimum prison sentence. As a result of his sentence,
Pusey will serve every day of the twenty-year mandatory minimum prison
sentence before he receives a judicial review3 of his sentence where his individual
characteristics and circumstances can be considered by the trial court. The Eighth
and Fourteenth Amendments required that the trial court have discretion to
sentence Pusey, a juvenile offender, to less than the twenty-year mandatory
minimum prison sentences. Instead, the trial court had to impose the mandatory
minimum term regardless of Pusey’s individual characteristics and circumstances.
CONCLUSION
Pusey respectfully requests that the Court grant a writ of certiorari to review
the judgment of Florida’s Fifth District Court of Appeal.
3
Pusey is eligible for a judicial review of his sentence after twenty-five years.
41
/s/ Barbara Busharis
_
BARBARA BUSHARIS
Assistant Public Defender
Office of the Public Defender,
Second Judicial Circuit of Florida
301 S. Monroe Street, Suite 401
Tallahassee, FL 32301
Florida Bar # 71780
Member of the Bar of this Court
42
INDEX TO APPENDICES
Appendix A:
Decision of Florida’s Fifth District Court of Appeal dated October 29, 2024.
Appendix B:
Motion for Written Opinion and/or to Certify a Question of Great Public
Importance
Appendix C
Fifth District’s Order Denying Motion for Written Opinion and/or to Certify a
Question of Great Public Importance issued on November 15, 2024
Appendix D:
Motion to Correct Sentencing Error filed in the Fourth Judicial Circuit in and
for Duval County, Florida
Appendix E:
Fourth Circuit Court Order Denying in Part and Granting in Part (an unrelated
ground)
43
APPENDIX
A
20
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D2023-0192
LT Case No. 16-2020-CF-7710
_____________________________
FELIX PUSEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Adrian G. Soud, Judge.
Jessica J. Yeary, Public Defender, and Victor D. Holder,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Virginia
Chester Harris, Senior Assistant Attorney General, Tallahassee,
for Appellee.
October 29, 2024
PER CURIAM.
AFFIRMED.
EDWARDS, C.J., and MAKAR and LAMBERT, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
2
APPENDIX
B
21
Filing # 210630860 E-Filed 11/10/2024 04:17:35 AM
IN THE DISTRICT COURT OF APPEAL,
FIFTH DISTRICT OF FLORIDA
FELIX PUSEY,
Appellant
v.
DCA CASE NO. 5D23-0192
L.T. NO. 2020CF7710
STATE OF FLORIDA,
Appellee.
/
MOTION FOR WRITTEN OPINION AND/OR TO CERTIFY A
QUESTION OF GREAT PUBLIC IMPORTANCE
Rule 9.330(a)(2)(D), Florida Appellate Procedure, permits an
appellant to request a written opinion when he believes that the
opinion will provide a legitimate basis for review by the Florida
Supreme Court. A motion for written opinion may be filed within
fifteen days of the Court’s order or within such other time set by the
court. Fla. R. App. P. 9.330(a). Appellant, pursuant to Florida Rule
of Appellate Procedure 9.330(a)(2)(D), moves for a written opinion on
the following grounds.
In Issue II of the initial and reply briefs, Appellant raised the
argument that section 790.23(1)(b), Florida Statutes, is facially
unconstitutional because it violates the Second and Fourteenth
Amendments.
This Court affirmed Appellant’s conviction for
1
violating section 790.23(1)(b) without a written opinion on October
29, 2024.
An argument that a criminal statute is facially
unconstitutional may be raised for the first time on appeal, so the
Court’s decision to affirm is not based on a lack of preservation.
Necessarily, the Court decided on the merits that section
790.23(1)(b) is a valid statute that does not offend the Second and
Fourteenth Amendments to the Constitution.
A written opinion
explaining that conclusion would provide grounds for Florida
Supreme Court review because it would expressly construe the
Federal Constitution and it would expressly declare a state statute
valid.
Expressly Declaring a State Statute Valid:
Rule 9.030(a)(2)(A)(i), Florida Rules of Appellate Procedure, and
Article V, section 3(b)(3) of the Florida Constitution permit the
Florida Supreme Court to exercise jurisdiction over a decision from
a district court of appeal that expressly declares valid a state
statute.
2
Here, an opinion on the validity of section 790.23(1)(b), Florida
Statutes, (raised in Issue II of Appellant’s initial brief) would provide
a legitimate basis for Florida Supreme Court review.
Expressly Construing the State or Federal Constitution:
Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate Procedure,
and Article V, section 3(b)(3) of the Florida Constitution permit the
Florida Supreme Court to exercise jurisdiction over a decision from
a district court of appeal that expressly construes a provision of the
state or federal constitution.
Here, an opinion holding that section 790.23(1)(b) does not
violate the Second Amendment (raised in Issue II of Appellant’s
initial brief) would provide a legitimate basis for Florida Supreme
Court review.
Certifying a Question of Great Public Importance:
There is no case issued either before or after New York State
Rifle Ass’n v. Bruen, 597 U.S. 1 (2022),
that addresses whether
section 790.23(1)(b), which criminalizes firearm possession by
people under the age of 24 who have previously been found
3
delinquent for a felony offense, violates the Second Amendment.
The State was unable to supply in the answer brief any historical
analogues to justify the statute’s restriction on citizens’ Second
Amendment right to possess firearms. Following Bruen, there is a
significant possibility that section 790.23(1)(b) violates the Second
and Fourteenth Amendments to the Constitution.
Appellant respectfully requests that this Court certify the
following question of great public importance to the Florida
Supreme Court:
Following the United States Supreme Court’s decision in
New York State Rifle Ass’n v. Bruen, 597 U.S. 1 (2022),
does section 790.23(1)(b), Florida Statutes, violate the
Second and Fourteenth Amendments to the Federal
Constitution?
WHEREFORE, Appellant asks this Court to issue a written
opinion on the validity of section 790.23(1)(b), which will provide a
legitimate basis for Florida Supreme Court review.
CERTIFICATE
I HEREBY CERTIFY that a copy of the foregoing has been
furnished, via the Florida Courts E-Filing Portal, to Virginia Harris,
4
Assistant Attorney General, at virginia.harris@myfloridalegal.com,
on November 10, 2024.
Respectfully submitted,
JESSICA J. YEARY
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
/s/ Victor Holder
VICTOR HOLDER
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 71985
LEON COUNTY COURTHOUSE
301 S. MONROE, SUITE 401
TALLAHASSEE, FLORIDA 32301
(850) 606-8500
victor.holder@flpd2.com
ATTORNEYS FOR APPELLANT
5
APPENDIX
C
22
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
Felix Pusey,
Case No.: 5D2023-0192
L.T. No.: 16-2020-CF-7710
Appellant(s),
v.
State of Florida,
Appellee(s).
_________________________________
Date: November 15, 2024
BY ORDER OF THE COURT:
ORDERED that Appellant’s “Motion for Written Opinion . . . ,” filed
November 10, 2024, is denied.
I hereby certify that the foregoing is
(a true copy of) the original Court order.
5D2023-0192 11/15/2024
SANDRA B. WILLIAMS, CLERK
Panel: Judges Edwards, Makar and Lambert
cc:
Tallahassee Attorney General
Virginia Chester Harris
Victor D. Holder
Jessica J. Yeary
APPENDIX
D
23
Filing# 170143935 E-Filed 03/31/2023 11:22:22 PM
IN THE CIRCUIT COURT OF
THE FOURTH JUDICIAL
CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA
STATE OF FLORIDA
Circuit Case
2020CF7710
5th DCA Case No. SD23-0192
V.
FELIX OMAR PUSEY,
Defendant.
_ _ _ _ _ _ _/
SECOND MOTION TO CORRECT SENTENCING ERROR UNDER
FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(b)(2)
Defendant/ Appellant, FELIX OMAR PUSEY, hereby moves this
Court to correct errors in the sentence imposed in this case and as
grounds states:
1.
Defendant was convicted of attempted first-degree murder
with a firearm, attempted second-degree murder with a firearm,
possession of a firearm by a juvenile who has committed a felony,
and discharging a firearm from a vehicle (R 347-52) 1 . Defendant
was a juvenile at the time of the offenses. A sentencing hearing was
held on July 22, 2022, where the Court sentenced Defendant to
1
Citations are to the record on appeal and will be cited as "R"
followed by the appropriate page number, all in parentheses.
-1-
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 04/04/2023 02:59: 19 PM
PAGE# 644
forty years in prison with a twenty-year mandatory minimum on the
attempted first-degree murder count and a sentence review after
twenty-five years; thirty years in prison with a
twenty-year
mandatory m1n1mum on the attempted second-degree murder
count; and fifteen years on each of the remaining two felonies (R
626-27). All counts were imposed concurrently (R 626).
2.
Defendant has appealed his conviction and sentence 1n
Fifth District Court of Appeal Case No. SD23-0192. No initial brief
has been filed in the district court as of this date.
Undersigned
counsel has filed a Notice of Pending Motion to Correct Sentencing
Error in the Fifth District Court of Appeal as required by Florida
Rule of Criminal Procedure 3.800(b)(2).
3.
Defendant was represented at the sentencing hearing by
attorney Julie Schla:x, 200 East Forsyth Street, Jacksonville,
Florida, 32202. Undersigned appellate counsel does not intend to
represent Defendant in the trial court.
Defendant therefore
requests that Ms. Schla:x represent Defendant at all appearances
and hearings on this motion as necessary, pursuant to Florida Rule
of Criminal Procedure 3.111(3).
It is requested that all papers
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PAGE# 645
relative to or concerning this motion be served upon appellate
counsel for Defendant and the State, as well as trial counsel.
4.
A calendar call should be held within 20 days, an
evidentiary hearing (if needed) should be held within 40 days, and a
ruling should be issued within 60 days.
See Fla. R. Crim. P.
3.800(b}(l)(B). The Court has jurisdiction to extend the 60-day time
limit if the extension is granted before the 60 days expires. Davis v.
State, 887 So. 2d 1286 (Fla. 2004).
Unless it is necessary that
another judge preside, this motion should be heard by the
sentencing judge, the Honorable Adrian Saud. See Fla. R. Crim. P.
3. 700(c); Kramer v. State, 970 So. 2d 468 (Fla. 2d DCA 2007).
5. For the reasons set forth in the following memorandum of
law the Court erred by failing to include in the written sentencing
order that Defendant, a juvenile offender, was entitled to a sentence
review in Count I, by failing to order a sentence review for Count II,
and by imposing minimum mandatory prison sentences in Counts I
and II.
-3-
PAGE# 646
MEMORANDUM OF LAW
I. The Court erred by failing to include in
its
written
sentencing
order
that
Defendant, a juvenile offender, was entitled
to a sentence review.
A trial court is required to enter a written order providing that
a juvenile defendant is entitled to sentence review pursuant to
section 921.1402, Florida Statutes. See Walker v. State, 288 So. 3d
694, 695 (Fla. 5th DCA 2019); James v. State, 258 So. 3d 468, 469
(Fla. 4th DCA 2018). Even where the trial court orally pronounces
at sentencing a defendant's entitlement to a sentence review, the
trial court must also enter a written order to that effect. Walker at
695. See, also, Barnes v. State, 175 So. 3d 380, 382 (Fla. 5th DCA
2015) (remanding for the trial court to amend the sentencing
documents to include the sentence review provision).
In the instant case, the Court orally pronounced at sentencing
that Defendant was entitled to a sentence review in Count I (R 626),
but the Court did not enter a written order to that effect or include
in the written sentencing order that Defendant was entitled to a
-4-
PAGE# 647
sentence review (R 393-98).
Pursuant to Walker and James, Defendant requests that the
Court amend the written sentencing order to include his eligibility
for sentence review in Count I.
II. The Court erred by failing to include a
sentence review in Count II.
A juvenile offender convicted of attempted second-degree
murder with a firearm is eligible for sentence review under section
921.1402 after serving twenty-five years. See State v. Davis, 342 So.
3d 709 (Fla. 1st DCA 2022) (holding that a juvenile offender
convicted of attempted second-degree murder with a firearm and
sentenced to thirty years in prison was eligible for a sentence review
after serving twenty-five years). The trial court must enter a written
order providing that a juvenile defendant is entitled to sentence
review pursuant to section 921.1402. Walker at 695; James at 469.
Here, like the defendant in Davis, Defendant was convicted of
attempted second-degree murder with a firearm in Count II and
sentenced to thirty years in prison.
The Court did not orally
pronounce at sentencing Defendant's entitlement to sentence review
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PAGE# 648
on Count II2 or issue a written order providing for Defendant's
sentence review eligibility.
Defendant respectfully requests that the Court amend the
written sentencing order to provide for Defendant's sentence review
eligibility in Count II.
III. The imposition of the 10-20-Life
minimum mandatory sentences in Counts I
and II for Defendant, a juvenile offender,
was unconstitutional under the Eighth and
Fourteenth Amendments to the U.S.
Constitution and Article I, section 1 7 of the
Florida Constitution.
Precedent:
Multiple
Florida
state
courts
have
held,
contrary
to
Defendant's argument, that minimum mandatory sentences are
constitutionally permissible. Defendant must raise this issue in the
sentencing court in order to preserve it for future federal habeas
proceedings.
The Florida Supreme Court has held that non-life sentences
for juveniles do not implicate Miller v. Alabama, 567 U.S. 460
2
The Court orally pronounced Defendant's sentence review
eligibility in Count I.
-6-
PAGE# 649
(2012). See Pedroza v. State, 291 So. 3d 541, 545 (Fla. 2020).
Several district
courts
of appeal
have
held
that minimum
mandatory sentences for juveniles are constitutionally permissible
because of the availability of sentence review: Martinez v. State, 256
So. 3d 897, 900 (Fla. 4th DCA 2018) (stating that "a sentence with a
non-life minimum mandatory imposed against a juvenile offender
facing a potential life sentence does not violate ... Miller so long as
the juvenile was afforded an individualized sentencing hearing
pursuant to section 921.1401 and is later afforded periodic judicial
review of his or her sentence as provided in section 921.1402);
Bailey v. State, 277 So. 3d 173 (Fla. 2d DCA 2019) (minimum
mandatory for juvenile was not unconstitutional where the juvenile
was eligible for sentence review); Montgomery v. State, 230 So. 3d
1256, 1263 (Fla. 5th DCA 2017) (minimum mandatory for juvenile
was not unconstitutional because the juvenile was eligible for
sentence review).
Argument:
Mandatory
m1n1mum
sentencing
schemes,
while
constitutionally valid for imposing increased punishment for adult
-7-
PAGE# 650
offenders, are and should be declared unconstitutional as applied to
juveniles.
Defendant
should
have
received
individualized
sentencing consideration at sentencing with a resulting sentence
that was not informed by the immutable constraints of a mandatory
minimum term. This claim of unconstitutionality follows in the
wake of Miller v. Alabama, 132 S. Ct. 2455 (2012). The validity of a
mandatory minimum sentence is "far from certain," as explained in
a definitive article by Sara E. Fiorillo in Mitigating After Miller:
Legislative Considerations and Remedies for the Future of Juvenile
Sentencing, B.U. Law Rev. 2095, 2127 (2013) (citing Douglas A.
Berman, Graham and Miller and the Eighth Amendment's Uncertain
Future, 27 CRIM. JUST. 19, 19-20 (2013)).
The
conclusion
that
10-20-Life
m1n1mum
mandatory
sentences are unconstitutional when applied to juveniles is
informed by a trilogy of Supreme Court cases that drastically
changed the criminal justice treatment of juvenile offenders. Roper
v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48
(2010); Miller v. Alabama, 132 S. Ct. 2455 (2012). These cases
along with state decisions have developed actionable precedent
-8-
PAGE# 651
leading to the demise of juvenile mandatory sentences. The Iowa
Supreme Court in State v. Lyle, 854 N.W.2d 378 (Iowa 2014),
provides the prime example.
Roper's 17-year-old defendant who planned and committed
murder was tried once he turned eighteen. Roper, 543 U.S. at 557.
The
prosecution
presented
aggravating
factors
supporting
imposition of the death penalty. The defense focused on defendant
Simmons' lack of convictions and his capacity to care for and love
his siblings and grandmother. Reversing the death sentence, the
U.S. Supreme Court identified three differences between juveniles
and adults that confirmed juvenile offenders cannot be classified as
the worst offenders justifying the death penalty. Id. at 569: (1)
juveniles do not possess the level of responsibility or maturity as
adults. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)); (2)
juveniles are more susceptible to "negative influences and outside
pressures,
including
peer
pressure."
Id.
(citing
Eddings
v.
Oklahoma, 455 U.S. 104,115 (1982)); and (3) juvenile character and
personality are not developed to the same extent as an adult. Id. at
570.
-9-
PAGE# 652
Graham was a non-homicide case involving a 16 year-old who
was sentenced to a 12-month probationary period for pleading
guilty to attempted armed robbery and armed burglary. Graham,
560 U.S. at 53. Less than six months later, the defendant violated
probation by committing a home invasion and admitting his
involvement in several other crimes. The trial court found Graham
guilty of the earlier armed burglary and attempted armed robbery
charges, sentencing him as an adult to life without parole. Graham,
560 U.S. at 57. As in Roper, the Supreme Court acknowledged that
the differences between juveniles and adults must be taken into
account when developing sentencing guidelines for youth. Id. at 6872 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993) ("Because
juveniles' lack of maturity and undeveloped sense of responsibility ...
often result in impetuous and ill-considered actions and decisions,
they are less likely to take a possible punishment into consideration
when making decisions.")). The Court concluded that because "[a]
juvenile offender who did not kill or in tend to kill has a twice
diminished moral culpability," life without parole sentences (LWOP)
were unconstitutionally harsh for juveniles. Id. at 69-71.
-10-
PAGE# 653
Miller combined two companion cases each involving 14-yearolds convicted of murder and sentenced to mandatory life without
parole. The Court examined two lines of Eighth Amendment-based
precedent: categorical bans on sentencing practices for youth, and
the requirement of individualized consideration before imposition of
a death sentence. Id. at 2463-64 (plurality opinion) ("Here, the
confluence of these two lines of precedent leads to the conclusion
that mandatory [LWOP] sentences for juveniles violated the Eighth
Amendment.").
Miller sought to create a
"certain process -
considering an offender's youth and attendant characteristics before imposing a particular penalty." Id. at 2471. Justice Kagan
explained for the 5-4 majority that, in both Miller and Jackson,
state law "mandated that each juvenile die in prison even if a judge
or jury thought that [their] youth and its attendant characteristics,
along with the nature of [their] crime" called for something other
than a LWOP sentence. Miller, 132 S. Ct. at 2460.
Combined with categorical bans on particular sentencing
practices
for
youth
and
the
requirement
of individualized
consideration, the Miller Court held that the Eighth Amendment
-11-
PAGE# 654
prevents a state from mandating life without parole (LWOP)
sentences for juveniles, and that individualized consideration needs
to be given to each juvenile offender before imposition of such a
sentence. Id. (citing Miller, 132 S. Ct. at 24 70). The Miller decision
underscores how "youth matters for purposes of meting out the
law's most serious punishments." Miller, 132 S. Ct. at 2464, 2471.
As a result of Miller, mandatory LWOP sentences for juveniles are
unconstitutional, and "a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest
possible penalty for juveniles." Id. at 24 75.
Since the Miller decision, legislative responses have been
inconsistent. The Supreme Court of Iowa, in Lyle, has led the way
for all jurisdictions: the abolition of all juvenile mandatory
minimum sentences. Lyle provides a template for compliance with
the Supreme Court's juvenile sentencing trilogy.
In 2011, 17-year-old Andre Lyle was convicted of second
degree robbery for taking a small bag of marijuana from another
student during an altercation at his high school. On his eighteenth
birthday, Lyle was sentenced to a mandatory prison term not to
-12-
PAGE# 655
exceed ten years, requiring service of seventy percent before parole
eligibility. Lyle, 854 N.W.2d at 381. Lyle objected to the mandatory
minimum sentence as a violation of the U.S. Constitution's Eighth
Amendment and the Iowa Constitution's guarantee against cruel
and unusual punishment as applied to youthful offenders.
The Iowa Supreme Court's painstaking review of the history of
juvenile jurisprudence led to its ultimate conclusion that minimum
mandatory sentences were unconstitutional:
Upon exercise of our independent judgment, as we
are required to do under the constitutional test, we
conclude that the sentencing of juveniles according
to statutorily required mandatory minimums does
not adequately serve the legitimate penological
objectives in light of the child's categorically
diminished culpability. See Graham, 560 U.S. at 7175, 130 S. Ct. at 2028-30). First and foremost, the
time when a seventeen-year-old could seriously be
considered to have adult-like culpability has
passed. See Null, 836 N.W.2d at 70; see also
Bruegger, 773 N.W.2d at 885 (recognizing that
youth applies broadly to diminish culpability)). Of
course, scientific data and the opinions of medical
experts provide a compelling and increasingly
ineluctable case that from a neurodevelopment
standpoint, juvenile culpability does not rise to the
adult-like standard the mandatory m1n1mum
provision of section 902.12(5) presupposes. Thus,
this prevailing medical consensus continues to
inform and influence our opinion today under the
constitutional analysis we are required to follow. As
-13-
PAGE# 656
demonstrated by our prior opinions and the recent
opinions of the United States Supreme Court,
however, we can speak of youth in the
commonsense terms of what any parent knows or
what any former child knows, and so, surely, we do
not abdicate our constitutional duty to exercise
independent judgment when we determine Lyle does
not have adult-like culpability.
Lyle at 398. See also State v. Zarate, 908 N.W.2d 831 (Iowa 2018)
(abuse of discretion by imposing an additional ten years based on
belief taking a life demands a minimum prison sentence even for
juveniles); State v. Houston-Sconiers, 391 P.3d 409, 188 Wn. 2d 1,
21 (Wash. 2017) (sentencing courts have complete discretion to
impose sentence below guideline range, overruling statute barring
discretion for juveniles); State v. Delbosque, 195 Wn.2d 106, 130,
456 P.3d 806, 819 (Wash. 2020) (upholding Lyle and HoustonSconiers, but finding no error in resentencing 17-year-old to life
without parole because court independently weighed Lyle and
statutory factors and did not rely on questionable testimony to
exclusion of other record evidence).
The evolution of Atwell v. State, 128 So. 3d 167, 169 (Fla. 4th
DCA 2013) (Miller applies only to mandatory sentence of life without
-14-
PAGE# 657
the possibility of parole), is instructive. In 2013, the Fourth District
upheld a mandatory sentence of life imprisonment without the
possibility of parole for 25 years for the capital offense of firstdegree murder. Id. The Florida Supreme Court granted review,
Atwell v. State, 160 So. 3d 892 (Fla. 2014), affirming the first-degree
murder conviction but remanding for re-sentencing with the
individualized sentencing consideration Miller required. Id. at 1041.
In a later review of the life sentence in Atwell v. State (Atwell
II), 197 So. 3d 1040, 1044-1047 (Fla. 2016), the Florida Supreme
Court critically analyzed the evolution of juvenile sentencing by
examining State v. Lyle, 854 N.W.2d 378, 399 (Iowa 2014) alongside
then-existing Florida law, leading to its conclusion that the
sentence was unconstitutional under Miller because, when he was
sentenced for first-degree murder at 16 years old, the trial court
was unable to consider how children were different and how those
differences counseled against irrevocably sentencing them to a
lifetime in prison. Even though that defendant was sentenced to life
with the possibility of parole after 25 years, under Florida's existing
parole system, the earliest release date calculated by the objective
-15-
PAGE# 658
parole guidelines was 140 years after the cnme, the effective
equivalent of a mandatorily imposed life without parole sentence.
Under this structure, that defendant did not receive the type of
individualized sentencing consideration Miller required.
The Atwell II Court embraced Lyle's analysis by pointing out
its consistency in following the spirit of Graham and Miller rather
than resorting to a narrow, literal interpretation. Atwell II, 197 So.
3d at 1046. Citing its decisions in Henry v. State, 175 So. 3d 675
(Fla. 2015) (quashing sentence of life plus 60 years for nonhomicide offenses in light of new 2014 juvenile sentencing
legislation), and Gridine v. State, 175 So. 3d 672 (Fla. 2015)
(quashing 70-year sentence for attempted first-degree murder and
25 years for attempted armed robbery conviction, both with 25-year
minimum mandatory sentences where no meaningful opportunity
for
future
release
rehabilitation),
the
based
on
demonstrated
Florida
Supreme
Court
maturity
and
reaffirmed
its
recognition, as the U.S. Supreme Court itself had done, that
"[c]ategorical
rules
tend
to
be
imperfect"
and
accordingly
determined Graham had "no intention of limiting its new categorical
-16-
PAGE# 659
rule to sentences denominated under the exclusive term of life in
prison."' Atwell II, 197 So. 3d at 1046 (citing Henry, at 679-680).
Moreover, the Atwell Court acknowledged the unconstitutionality of
a juvenile sentence under Miller is not as simple whether it is "with
or without parole." Id.
The Florida Supreme Court understood "that lengthy term-ofyears sentences can implicate Graham as unconstitutional for
juveniles if those sentences fail to provide for the critical
mechanism - a meaningful opportunity for release - at the heart of
the Graham holding." Atwell II, 197 So. 3d at 104 7. The Court
explained:
Indeed, we did so even though those sentences were
not technically labeled as "life in prison." See Henry,
175 So. 3d at 680; Gridine, 175 So. 3d at 674-75.
This Court also acknowledged in Horsley that Miller
stands for the proposition that "youth matters for
purposes of meting out the law's most serious
punishments" and that the Eighth Amendment
categorically prohibits certain punishments without
"considering a juvenile's 'lessened culpability' and
greater 'capacity for change."' Horsley, 160 So. 3d at
398-99 (quoting Miller, 132 S. Ct at 2460).
Atwell II at 104 7.
The Supreme Courts 1n Iowa and Florida both agree that
-17-
PAGE# 660
"nothing [the United States Supreme Court] has said [about
children] is 'crime-specific,' suggesting the natural concomitant that
what it said is not punishment-specific either." Lyle, 854 N.W.2d at
399. Because the mandatory sentence imposed on a juvenile
offender is contrary to the law and policy in Florida concerning
treatment of juveniles, this Court should adopt Lyle and rule that
the mandatory minimum sentence for this juvenile offender is
contrary to Florida law as unconstitutional.
"Taken together, Graham and Miller establish that 'children
are different'; that 'youth matters for purposes of meting out the
law's most serious punishments'; and that 'a [trial] judge .... must
have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles."' Atwell II, 197
So. 3d at 1045. The Graham and Miller concern is not punishmentspecific, but offender directed.
Mandatory minimums cannot be
constitutionally applied to juveniles. State v. Means, 872 N.W.2d
409 (Iowa Ct. App. 2015). As applied to juveniles, mandatory
m1n1mums
limit
the
trial
court's
allowable
discretionary
considerations before the imposition of a harsh sentence.
-18-
PAGE# 661
Other states have also questioned the constitutionality and
appropriateness of minimum sentences for juveniles. See State v.
Taylor G., 315 Conn. 734, 110 A.3d 338 (Conn. 2015) (legislature
may wish to revisit whether mandatory terms are appropriate for
juveniles); State v. Williams-Bey, 333 Conn. 468, 477-480, 215 A.3d
711, 717-718 (Conn. 2019) (J. Ecker dissenting).
However, since Atwell II the Florida Supreme Court has held
that a juvenile's sentence does implicate Graham and Miller "unless
it meets the threshold requirement of being a life sentence or the
functional equivalent of a life sentence." Pedroza at 548.
Conclusion:
A 10-20-Life m1n1mum mandatory sentence for a juvenile
offender is unconstitutional because it removes the individualized
sentencing discretion that the Eighth Amendment and Article I,
section 17 require. Here, the trial court's individualized sentencing
discretion was unconstitutionally limited by the necessity to impose
the twenty-year minimum mandatory prison sentences pursuant to
section 775.087(2)(a) in Counts I and II.
Defendant will serve his
full twenty-year minimum mandatory sentences before he receives
-19-
PAGE# 662
his sentencing review at twenty-five years. The federal Constitution
requires that trial courts have complete individualized sentencing
discretion to sentence juvenile offenders without the constraints of
one-size-fits-all minimum mandatory sentences.
Defendant respectfully requests that this Court strike the
twenty-year minimum mandatory sentences from Counts I and II.
WHEREFORE, Defendant respectfully requests that the Court
amend the written sentencing order to specifically provide for
Defendant's eligibility for sentence review in Counts I and II, and
that the Court strike from Defendant's sentences in Counts I and II
the unconstitutional mandatory minimum terms.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been
furnished via the Florida Courts E-Filing Portal to Trisha Meggs
Pate,
Assistant
Attorney
General,
at
crimapptlh@myfloridalegal.com; to the Honorable Adrian Soud
-20-
PAGE# 663
through
the
e-filing
julie@esalawgroup.com;
portal;
and to
Julie
to
Leah
Owens,
Schlax,
Assistant State
Attorney, at laowens@coj.net, on this date, March 31, 2023.
Respectfully submitted,
JESSICA J. YEARY
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
Isl Victor Holder
VICTOR HOLDER
Assistant Public Defender
Florida Bar No. 71985
Leon County Courthouse
301 South Monroe Street, Suite
401
Tallahassee, FL 32301
(850) 606-8500
victor. holder@flpd2.com
ATTORNEYS FOR DEFENDANT
-21-
PAGE# 664
at
APPENDIX
E
24
Filing# 171027963 E-Filed 04/14/2023 01:21:56 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 16-2020-CF-07710-AXXX
DIVISION: CR-A
STATE OF FLORIDA
V.
FELIX OMAR PUSEY,
Defendant.
- - - - - - - -- -I
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S
SECOND MOTION TO CORRECT SENTENCING ERROR
This cause comes before this Court on.Defendant's "Second Motion to Correct Sentencing
Error Under Florida Rule of Criminal Procedure 3.800(b)(2)," filed on March 31, 2023.
On May 25, 2022, a jury convicted Defendant of Attempted First Degree Murder (Count
One), Attempted Second Degree Murder (Count Two), Possession of a Firearm by a Juvenile
Delinquent Felon (Count Three), and Discharging a Firearm from a Vehicle (Count Four). On July
22, 2022, this Court sentenced Defendant to a forty-year term of imprisonment as to Count One
and a thirty-year term of imprisonment as to Count Two, both of which carry twenty-year
minimum mandatories pursuant to section 775.087(2)(a), Florida Statutes (2022), and fifteen-year
terms of imprisonment as to Counts Three and Four. Defendant filed a notice of appeal but has not
yet filed his initial appellate brief. •
Defendant files the instanf Motion pursuant to rule 3.800(b)(2), which allows a defendant
to correct a. sentencing error during the pendency of an appeal so long as the motion is filed prior
to the first appellate brief. See Ffa:R. Crim. P. 3.800(b)(2).
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 04/19/2023 10:59:21 AM
PAGE# 665
Defendant asserts two claims. First, Defendant argues this Court improperly failed to
include the juvenile sentence revi~w period on his Judgment and Sentence form as to Counts One
and Two. Defendant is entitled to a written order specifying his entitlement to a twenty-five-year
juvenile sentence review. Walker v. State, 288 So. 3d 694, 695 (Fla. 4th DCA 2019).
Defendant's second claim.is that imposition of the twenty-year minimum mandatories on
Counts One and Two constitute impermissible cruel and unusual punishment under federal and
state constitutions. Controlling precedent holds otherwise. Montgomery v. State, 230 So. 3d 1256,
1263 (Fla. 5th DCA 2017) ("[T]he mandatory [10-20-Life] minimum sentence ... does not
constitute cruel and unusual punishment when applied to a juvenile offender as long as he or she
gets the mandated judicial review:").
Accordingly, it is ORDERED that:
1.
Defendant's "Motion to Correct Sentencing Error Under Florida Rule of Criminal
Procedure 3.800(b)(2)," filed by· counsel on March 30, 2023, is GRANTED IN PART and
DENIED IN PART.
2.
The Clerk of the Court is directed to notate nunc pro tune on page nine of
Defendant's Judgment and Sentence form that Defendant is entitled to a twenty-five-year juvenile
sentence review under section 921-.1402(2)(b), Florida Statutes, as to Counts One and Two.
DONE
AND
ORDERED
_J\~~=------ =--\-1~ ' 2023.
m
Jacksonville,
Duval
County,
Florida
TATIANA R. SALVADOR
Circuit Judge Signing for CR-A
2
PAGE# 666
on
Copies to:
Office of the State Attorney, Division CR-A
Leah A. Owens, Esq.
(laowens@coj .net)
(SA04Duva1Criminal@,coj.net)
Julie Schlax_, Esq.
(julie@esalawgroup.com)
Trial Counsel for Defendant
Trisha M. Pate (crimapptlh@myfloridalegal.com)
Office of the Attorney General
400 South Monroe Street, PL-01
Tallahassee, FL 32399-6536
Victor Holder, Esq.
(victor.holder@flpd2.com)
301 South Monroe Street, Suite 401
Tallahassee, FL 32301
Appellate Attorney for Defendant
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been furnished to all legal counsel for both parties
via
the
addresses
listed • above
and
Defendant
via
- - -- - - - - - - - - - - - 2023.
Deputy Clerk
Case Nos.:
/the
16-2020-CF-0077 l 0-AXXX
3
PAGE# 667
U.S.
on
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