Petition for Writ of Certiorari — Floyd Madison, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

FLOYD MADISON, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600; (561) 624-6560

ppetillo@pd15.state.fl.us

appeals@pd15.org

APPENDIX A

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FLOYD MADISON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-1368

[March 6, 2025]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Ernest A. Kollra, Jr., Judge; L.T. Case No. 19014377CF10A.

Daniel Eisinger, Public Defender, and Summer Hill, Assistant Public

Defender, West Palm Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Paul Patti, III,

Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

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

*

*

*

Not final until disposition of timely filed motion for rehearing.

1

APPENDIX B

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

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

July 24, 2025

FLOYD MADISON,

Appellant(s)

v.

CASE NO. - 4D2023-1368

L.T. No. - 19014377CF10A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's March 6, 2025 motion for rehearing and issuance of written

opinion is denied.

Served:

Attorney General-W.P.B.

Jessenia J Concepcion

Benjamin Hunter Eisenberg

Summer Ivy Hill

Paul Patti, III

Public Defender-Broward

Sarah Elizabeth Wood Sandler

Dione Yvette Trawick

KTH

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

4D2023-1368 July 24, 2025

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2023-1368 July 24, 2025

2

APPENDIX C

ISSUE IV

THE SIXTH AND FOURTEENTH AMENDMENTS

REQUIRE THE JURY, NOT THE JUDGE, TO

DETERMINE APPELLANT’S RELEASE STATUS

FOR PRR SANCTIONS

Appellant was convicted of Count 1) Attempted Murder in the

First Degree and Count 2) Aggravated Battery. He was sentenced to

1) Life as a PRR and 2) 30 years as a VCC. Appellant argues that his

PRR and VCC sentences are illegal. The trial court denied this claim.

The Sixth and Fourteenth Amendments require the jury, not the

judge, to find the face of Appellant’s relief status. Appellant

acknowledges that the district courts have rejected a Sixth

Amendment challenge to the requirements of HVFO and PRR

sentences, relying on the prior-record exception of Almendarez-Torres

v. United States, 523 U.S. 224 (1998). See Peters v. State, 343 So. 3d

144 (Fla. 3d DCA 2022) (collecting cases); Chapa v. State, 159 So. 3d

361 (Fla. 4th DCA 2015) (PRR); Luton v. State, 934 So. 2d 7, 9-10

(Fla. 3d DCA 2006) (HVFO). But Appellant must preserve this issue

if he seeks to argue it in a higher court. Therefore, he correctly makes

this argument notwithstanding the adverse authority that controls

3

APPENDIX C

this Court’s decision. See Hollingsworth v. State, 293 So. 3d 1049,

1051 (Fla. 4th DCA 2020).

As a preliminary matter, this Court should consider staying this

cause pending the disposition of Erlinger v. United States, No. 23-370

(U.S. Nov. 20, 2023) (cert. granted). In Erlinger, the Court will decide

whether the prior record exception extends to the timing of release

dates. Here is the background of that case:

Under the Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e)(1), an enhanced sentence must be imposed if a defendant’s

prior convictions were “committed on occasions different from one

another.” In Wooden v. United States, 595 U.S. 360 (2022), the Court

held that this was a factual issue, and that Wooden’s ten prior

offenses (for committing ten storage-unit burglaries) were not

committed on occasions different from one another. Id. at 371-76.

Thus, he did not qualify for an enhanced sentence under ACCA. Id.

at 375-76.

In his concurring opinion, Justice Gorsuch recognized a

“constitutional question simmers beneath the surface” of the Court’s

decision. Wooden, 595 U.S. at 397 n.7 (Gorsuch, J., joined by Justice

Sotomayor, concurring). The issue is whether a judge, rather than a

4

APPENDIX C

jury, may determine whether the prior offenses were committed on

one or more occasions under a “preponderance of the evidence

standard.” Id. The Court declined to reach that issue in Wooden

because the defendant “did not raise it.” Id. at 365 n.3 (majority

opinion). But as Justice Gorsuch noted, “there is little doubt that [the

Court] will have to do so soon.”

Id. at 397 n.7 (Gorsuch, J.,

concurring).

Justice Gorsuch was right: that question is now before the

Court in Erlinger. And the answer to that question will be dispositive

here. As Appellant argued below, his prior convictions say nothing

about when he was released from prison or even whether he went to

prison (and, of course, they could not have). Because the judge,

rather than the jury, made those findings under a preponderance of

the evidence standard, appellant’s Sixth Amendment right to trial by

jury was violated and his sentence is illegal.

Standard of Review

This issue was properly preserved through the denial of

Appellant’s Rule 3.800(b)(2) motion. See Millien v. State, 336 So. 3d

354, 356 (Fla. 4th DCA 2022). “Because a motion to correct a

sentencing error involves a pure issue of law, our standard of review

5

APPENDIX C

is de novo.” Metellus v. State, 310 So. 3d 90, 92 (Fla. 4th DCA 2021)

(quoting Brooks v. State, 199 So. 3d 974, 976 (Fla. 4th DCA 2016)).

If this Court finds that the 3800(b)(2) motion did not properly

preserve this issue because it was an error in the sentencing process,

the Court may still review the issue as fundamental error.

“A claim of fundamental error is reviewed de novo.” Grant v.

State, 266 So. 3d 203, 205 (Fla. 4th DCA 2019) (citation omitted).

Fundamental error is error that “goes to the foundation of the case

or the merits of the cause of action and is equivalent to a denial of

due process.” Johnson v. State, 969 So. 2d 938, 955 (Fla. 2007)

(quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)).

Analysis

There is a split authority over whether a defendant’s release

status falls within the prior-record exception. The courts of

California, Colorado, Washington, Connecticut, and Indiana have

ruled in line with Florida that the prior-record exception applies. See

People v. Towne, 44 Cal. 4th 63, 70-71, 186 P.3d 10, 12-13 (2008)

(“We conclude the aggravating circumstance that a defendant served

a prior prison term or was on probation or parole at the time the

crime was committed may be determined by a judge and need not be

6

APPENDIX C

decided by a jury.”); People v. Montoya, 141 P. 3d 916, 923 (Co. App.

2006) (holding that a defendant’s parole or probationary status “is a

necessary component of the conviction” and therefore falls within the

fact-of-a-prior-conviction exception); State v. Jones, 159 Wash. 2d

231, 234, 149 P.3d 636, 637 (2006) (“[B]ecause community custody

is directly related to and follows from the fact of a prior conviction

and because the attendant factual determinations involve nothing

more than a review of the nature of the defendant’s criminal history

and the defendant’s offender characteristics, such a determination is

properly made by the sentencing judge.”); State v. Fagan, 280 Conn.

69, 94, 905 A.2d 1101, 1117 (2006) (holding that whether the

defendant committed the offense while on bond “involved a legal

determination, not a factual one, and that, accordingly, he was not

entitled to a jury trial on the issue of his status.”); Ryle v. State, 842

N.E.2d 320, 325 (Ind. 2005) (holding that whether defendant

committed offense while on probation fell under prior-record

exception because the trial court relied on judicial records to make

that finding).

The courts of Arizona, Tennessee, North Carolina, Oregon, and

the Ninth Circuit have ruled the other way: release status is not

7

APPENDIX C

encompassed within the prior-record exception. State v. Large, 321

P.3d 439, 443-44 (Ariz. Ct. App. 2014); State v. Gross, 31 P. 3d 815,

819 (Az. App. 2001) (holding that whether the defendant was on

parole at the time of the offense must be found by the jury); State v.

Wright, 2008 WL 4170033 (Tenn. Crim. App. 2008) (probation

status); State v. Wissink, 617 S.E.2d 319, 325 (N.C. Ct. App. 2005)

(holding that although a “defendant's probationary status is

analogous to and not far-removed from the fact of a prior conviction,”

the fact of the defendant's probationary status “did not have the

procedural safeguards of a jury trial and proof beyond a reasonable

doubt recognized in Apprendi as providing the necessary protection

for defendants at sentencing.”); State v. Perez, 102 P.3d 705, 709 (Or.

Ct. App. 2004), rev'd on other grounds, 340 Or. 310, 131 P.3d 168

(2006) (holding that prior-record exception applies to “bare fact of a

prior conviction-even those related thereto” but that “the allegation

that defendant was on probation or parole when he committed the

offenses of conviction has not been proved to a jury beyond a

reasonable doubt, so the same ‘procedural safeguards’ had not

attached to that ‘fact’ when he was sentenced.”); Estrella v. Ollison,

668 F.3d 593, 598 (9th Cir. 2011) (holding that parole status does

8

APPENDIX C

not fall within prior-record exception because original sentencing

documents will not necessarily reflect that status). See generally

Wayne R. LaFave et al., Criminal Procedure, 6 Crim. Proc. § 26.4(i)

n.248 (4th ed.) (noting the split of authority on this issue).

The decisions of Florida courts (and the courts of California,

Colorado, Washington, Connecticut, and Indiana) unmoor the priorrecord exception from its constitutional anchor. The United States

Supreme Court recognized in Apprendi v. New Jersey, 530 U.S. 466

(2000), that the fact of a prior conviction presents a unique exception

to the Sixth Amendment’s requirement that all facts determining the

defendant’s maximum sentence must be submitted to a jury because

a defendant’s prior conviction could not have been entered unless he

previously enjoyed the right to have a jury find beyond a reasonable

doubt the facts constituting the elements of his prior offense. See

Apprendi, 530 U.S. at 496 “([T]here is a vast difference between

accepting the validity of a prior judgment of conviction entered in a

proceeding in which the defendant had the right to a jury trial and

the right to require the prosecutor to prove guilt beyond a reasonable

doubt, and allowing the judge to find the required fact under a lesser

standard of proof.”).

9

APPENDIX C

Courts depart from this logic when they expand the prior-record

exception to include facts that the defendant has never enjoyed the

right to have a jury find beyond a reasonable doubt, such as whether

and when a defendant was released from a state prison or similar

facility. Because Appellant has never enjoyed the right to have a jury

determine beyond a reasonable doubt whether he committed the

offense for which he was sentenced within three years of his release

from a state prison or similar facility, his enhanced sentence based

on that fact violates his Sixth Amendment right to a jury trial.

The United States Supreme Court has limited the prior-record

exception in its caselaw interpreting Congress’s Armed Career

Criminal Act, 18 U.S.C. § 924(e). See, e.g., (in chronological order)

Taylor v. United States, 495 U.S. 575, 590-91 (1990); Shepard v.

United States, 544 U.S. 13, 24 (2005), Descamps v. United States, 570

US. 254, 269 (2013); Mathis v. United States, 579 U.S. 500, 510

(2016). In that context, criminal defendants have repeatedly called

on the Court to determine which facts about a defendant’s criminal

history a sentencing court may consider without violating his Sixth

Amendment right to a jury trial.

10

APPENDIX C

The Court drew a crucial distinction between “the fact of a prior

conviction” and “a fact about a prior conviction” in Shepard v. United

States, 544 U.S. 24, 25 (2005). Shepard asserted at his sentencing

hearing that his prior Massachusetts conviction for burglary did not

count as an ACCA predicate offense because Massachusetts’

definition of burglary included unlawful entries into places such as

boats and cars, and thus swept more broadly than the generic

burglary identified as a predicate offense by Congress in the ACCA.

Id. at 16-17. Because the elements of Shepard’s Massachusetts

burglary offense did not match the elements of generic burglary, the

sentencing court properly refused to count the prior conviction. Id.

The government appealed the sentencing court’s decision to the First

Circuit Court of Appeals, where it argued that the sentencing court

could look at police reports to determine whether Shepard’s

conviction was based on an act consistent with generic burglary. Id.

at 17-18. The First Circuit agreed with the government and reversed

the sentencing court. Id. at 18. The United States Supreme Court

disagreed.

The Court reasoned that, while Almendarez-Torres v. United

States, 523 U.S. 224 (1998), arguably allows sentencing courts to

11

APPENDIX C

consider “the record of conviction,” it does not authorize sentencing

courts to dig into other facts relating to a prior conviction. Id. at 2426. 1 The Court drew the crucial distinction: “While the disputed fact

0F

here can be described as a fact about a prior conviction, it is too far

removed from the conclusive significance of a prior judicial record,

and too much like the findings subject to Jones and Apprendi, to say

that Almendarez-Torres clearly authorizes a judge to resolve the

dispute.” Id. (emphasis added). The Court recognized the risk of

constitutional error presented by allowing a sentencing court to look

into facts apart from those that were essential to the prior conviction.

Eight years after Shepard, the Court corrected another Court of

Appeal, this time the Ninth Circuit, after that court broadly construed

the prior-conviction exception as a license for judicial factfinding.

Descamps v. United States, 570 U.S. 254 (2013). The Ninth Circuit

Justice Thomas, who concurred in the Court’s judgment in

Shepard, departed from the Court in this section of the opinion

because it did not go far enough. Shepard v. United States, 544 U.S.

24, 26-28 (2005) (Thomas, J., concurring in part and concurring in

the judgment). Justice Thomas wrote separately to express his view

that (1) Apprendi had “eroded” the prior-conviction exception in its

entirety, (2) the Court had wrongly decided Almendarez-Torres, and

(3) as a majority of the Court would later agree, the prior-conviction

fact-finding proposed by the government in Shepard gave rise “to

constitutional error, not doubt.” Id. at 26–28.

1

12

APPENDIX C

had held that a sentencing court deciding whether to count a prior

conviction for burglary under a California statute that defined the

crime to include even lawful entries could review plea colloquies and

other documents to determine what the defendant actually did and

count the conviction if the defendant “could have been convicted” of

generic burglary. Descamps, 570 U.S. at 268 (emphasis in original).

On review, the Court tersely described the problem with the Ninth

Circuit’s decision, “Yet again, the Ninth Circuit’s ruling flouts our

reasoning—here, by extending judicial factfinding beyond the

recognition of a prior conviction.” Id. at 270. The Court explained that

its categorical approach to identifying predicate convictions under

the ACCA “merely assists the sentencing court in identifying the

defendant’s crime of conviction, as we have held the Sixth

Amendment permits.” Id. at 269. Any other finding “would (at the

least) raise serious Sixth Amendment concerns if it went beyond

merely identifying a prior conviction.” Id.

The Court in Descamps clearly delineated the constitutional

limits of the prior-record exception. A sentencing court cannot dig

into non-elemental facts surrounding a conviction, because it is only

the facts that a defendant had the right to have a jury find in a prior

13

APPENDIX C

proceeding that a sentencing court may use to enhance his sentence

without violating his Sixth Amendment right to a jury trial: “And

there’s the constitutional rub. The Sixth Amendment contemplates

that

a

jury—not

a

sentencing

court—will

find

such

facts,

unanimously and beyond a reasonable doubt. And the only facts the

court can be sure the jury so found are those constituting elements

of the offense—as distinct from amplifying but legally extraneous

circumstances.” Descamps, 570 U.S. at 269-70. The Court in

Descamps was of course considering whether a sentencing court

could look into the extra-elemental details of the defendant’s conduct

on which a prior conviction is based. But the Court’s observations

about the logical limits of the fact-of-a-prior-conviction exception

nonetheless describe the only reasonable constitutional rationale for

the exception: the only facts that are excepted from the rule in

Apprendi are those to which the defendant’s Sixth Amendment right

has already attached. This includes the elements of the defendant’s

prior offense because the defendant already enjoyed the right to have

a jury find those facts beyond a reasonable doubt.

In essence, there is no exception to the Sixth Amendment. The

sole reason that the fact of a prior conviction is “excepted” from the

14

APPENDIX C

rule in Apprendi is because the Sixth Amendment previously applied

to the elements that made the conviction constitutionally permissible

in the first place. As the Court observed in Mathis, a sentencing judge

“can do no more, consistent with the Sixth Amendment, than

determine what crime, with what elements, the defendant was

convicted of.” Mathis, 579 U.S. at 511-12. See also Eric C. Tung, Does

the Prior Conviction Exception Apply to A Criminal Defendant's

Supervised Release Status?, 76 U. Chi. L. Rev. 1323, 1345 (2009)

(“The fact of supervised release status is not reflected in the jury

verdict or an earlier verdict and cannot be used as an enhancement

beyond the maximum.”). The decisions of the courts of Florida,

California, Colorado, Washington, Connecticut, and Indiana plainly

hold that a sentencing judge can do more.

The analysis that flows from the only constitutional rationale

underlying the prior-record exception leads to the conclusion that

Appellant’s sentence violates the Sixth Amendment. Whether

Appellant was released from a state prison or similar facility within

three years of his offense was not an element of the offense he was

convicted or any of his prior offenses. And Appellant was denied the

right to have his jury determine whether he was released from a state

15

APPENDIX C

prison or similar facility within three years of his offense before this

Court enhanced his sentence based on those facts.

If Appellant’s sentences are allowed to stand, they will be based

on a factual question that was withheld from a jury of his peers. The

Sixth and Fourteenth Amendments guarantee Appellant the right to

submit the question of whether he was released from a state prison

or similar facility within three years or within five years from his

offense to a jury at least once.

Whether and when Appellant was released from prison “go[es]

further” than “the simple fact of a prior conviction” and veers into

“explor[ing] the manner in which the defendant committed the

offense,” in violation of the Sixth Amendment. Mathis, 579 U.S.at

510-11. He thus cannot be subjected to a PRR sentence because

there has been no jury finding as to whether and when he was

released from prison.

This Court should either reverse for new sentencing or stay this

case pending Erlinger.

16

APPENDIX C

ISSUE V

APPELLANT WAS ENTITLED TO A TWELVEPERSON JURY UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS AND HE DID

NOT WAIVE THAT RIGHT

Appellant had the constitutional right to a jury trial because he

was convicted of a felony and is currently serving life. Baldwin v. New

York, 399 U.S. 66, 72-73 (1970). But Appellant was convicted by a

jury comprised of six people. He argues that the Sixth and Fourteenth

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

defendant is charged with an offense punishable by more than six

months in jail. The standard of review of constitutional claims is de

novo. See A.B. v. Florida Dept. of Children & Family Services, 901 So.

2d 324, 326 (Fla. 3d DCA 2005).

Appellant can raise this issue for the first time on appeal even

though he did not object in the trial court because the question is

whether he personally waived his constitutional right to a twelveperson jury, and he did not. For example, even if defense counsel had

no objection to a five-person jury, but the trial court did not secure

the defendant’s personal waiver of his or her right to a six-person

jury, the case would present reversible error on appeal. Wallace v.

17

APPENDIX C

State, 722 So. 2d 913, 914 (Fla. 2d DCA 1998); Gamble v. State, 696

So. 2d 420, 420 (Fla. 5th DCA 1997); Blair v. State, 698 So. 2d 1210,

1217-18 (Fla. 1997); see also Johnson v. State, 994 So. 2d 960, 96364 (Fla. 2008) (holding that defendant must personally waive

constitutional right to have jury decide prior-convictions element in

felony DUI case; defense counsel’s stipulation that trial court act as

factfinder is insufficient).

In short, the defendant himself or herself must agree to be tried

by a jury with fewer jurors than constitutionally required. Appellant

acknowledges this Court came to a different conclusion in Albritton

v. State, 360 So. 3d 1145 (Fla. 4th DCA 2023). But this Court may

have overlooked Wallace, Gamble, Blair, and Johnson.

Appellant notes that this Court recently decided Guzman v.

State, 350 So. 3d 72 (Fla. 4th DCA 2022), which rejected a

defendant’s argument “that his convictions by a six-person jury

violated the Sixth and Fourteenth Amendments to the United States

Constitution.” The defendant in Guzman appealed his case to the

Florida Supreme Court, which denied review. See Guzman v. State,

SC22-1597. Therefore, Appellant seeks to preserve this argument for

18

APPENDIX C

further review to the United States Supreme Court. 2 Appellant

1F

recognizes the Supreme Court denied certification on May 28, 2024,

however, the issue is still being raised for preservation pending

additional review in the future.

On the merits, although the United States Supreme Court held

in Williams v. Florida, 399 U.S. 78, 86 (1970), that juries as small as

six were constitutionally permissible, Williams is impossible to

square with the Supreme Court’s ruling in Ramos v. Louisiana, 140

S. Ct. 1390 (2020), which concluded that the Sixth Amendment’s

“trial by an impartial jury” requirement encompasses what the term

“meant at the Sixth Amendment’s adoption.” Id. at 1395.

After the Sixth Amendment was enacted, a bevy of state courts

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

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

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

1898, the United States Supreme Court added its voice to the chorus,

Appellate attorneys have the obligation to “zealously assert[] the

client’s position under the rules of the adversary system.” R.

Regulating Fla. Bar prmbl. As part of this obligation, “[c]ounsel has

the responsibility to make such [arguments] as may be necessary to

keep the defendant’s case in an appellate ‘pipeline.’” Sandoval v.

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

2

19

APPENDIX C

noting that the Sixth Amendment protects a defendant’s right to be

tried by a twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349350 (1898). The Supreme Court continued to cite the basic principle

that the Sixth Amendment requires a twelve-person jury in criminal

cases for seventy more years. See, e.g., Maxwell v. Dow, 176 U.S. 581,

586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930); Duncan

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

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

precedent in a decision that Justice Harlan described as “stripping

off the livery of history from the jury trial” and ignoring both “the

intent of the Framers” and the Court’s long held understanding that

constitutional “provisions are framed in the language of the English

common law [] and … read in the light of its history.” Baldwin v. New

York, 399 U.S. 117, 122-123 (1970) (citation omitted) (Harlan, J.,

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

the Framers “may well” have had “the usual expectation” in drafting

the Sixth Amendment “that the jury would consist of 12” members.

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

“purely historical considerations” were not dispositive. Id. at 99.

Rather, the Court focused on the “function” that the jury plays in the

20

APPENDIX C

Constitution, concluding that the “essential feature” of a jury is it

leaves justice to the “commonsense judgment of a group of laymen”

and thus allows “guilt or innocence” to be determined via “community

participation and [with] shared responsibility.” Id. at 100-01.

According to the Williams Court, both “currently available evidence

[and] theory” suggested that function could just as easily be

performed with six jurors as with twelve. Id. at 101-102 & n.48.

Williams’s ruling that the Sixth Amendment (as incorporated

to the States by the Fourteenth) permits a six-person jury cannot

stand in light of Ramos. There, the Supreme Court held that the Sixth

Amendment requires a unanimous verdict to convict a defendant of

a serious offense. In reaching that conclusion, the Ramos Court

overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that

it faulted for “subject[ing] the ancient guarantee of a unanimous jury

verdict to its own functionalist assessment.” 140 S. Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” the Court undertook in

Williams, observing that it is not the Court’s role to “distinguish

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

think) serve ‘important enough functions to migrate silently into the

21

APPENDIX C

Sixth Amendment and those that don’t.’” 140 S. Ct. at 1400-01.

Ultimately, the Ramos Court explained, the question is whether “at

the time of the Sixth Amendment’s adoption, the right to trial by jury

included” the particular feature at issue. Id. at 1402. As the history

summarized above establishes, there can be no serious doubt that

the common understanding of the jury trial during the Revolutionary

War era was that twelve jurors were required. See 140 S. Ct. at 1395.

Even setting aside Williams’s now-disfavored functionalist logic,

its ruling suffered from another significant flaw: it was based on

research that was out of date shortly after the opinion issued.

Specifically, the Williams Court “f[ou]nd little reason to think” that

the goals of the jury guarantee—including, among others, “to provide

a fair possibility for obtaining a representative[] cross-section of the

community”—“are in any meaningful sense less likely to be achieved

when the jury numbers six, than when it numbers 12.” Id. at 100.

The Court theorized that “in practice the difference between the 12man and the six-man jury in terms of the cross-section of the

community represented seems likely to be negligible.” Id. at 102.

In the time since Williams, that determination has proven

incorrect. Indeed, the Court acknowledged as much just eight years

22

APPENDIX C

later in Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded

that the Sixth Amendment barred the use of a five-person jury.

Although Ballew did not overturn Williams, the Ballew Court

observed that empirical studies conducted in the handful of

intervening years highlighted several problems with Williams’

assumptions. Moreover, the Ballew Court “admit[ted]” that it “d[id]

not pretend to discern a clear line between six members and five,”

effectively acknowledging that the studies it relied on also cast doubt

on the effectiveness of the six-member jury. Id. at 239.

Post-Ballew

research

has

further

undermined

Williams.

Current empirical evidence indicates “reducing jury size inevitably

has a drastic effect on the representation of minority group members

on the jury.” Diamond et al., Achieving Diversity on the Jury: Jury

Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud. 425,

427 (Sept. 2009); see also Higginbotham et al., Better by the Dozen:

Bringing Back the Twelve-Person Civil Jury, 104 Judicature 47, 52

(Summer 2020). Because “the 12-member jury produces significantly

greater heterogeneity than does the six-member jury,” Diamond et

al., Achieving Diversity on the Jury, supra, at 449, it increases “the

opportunity for meaningful and appropriate representation” and

23

APPENDIX C

helps ensure that juries “represent adequately a cross-section of the

community.” Ballew, 435 U.S. at 237.

Appellant recognizes that the state constitution provides:

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

be secure to all and remain inviolate. The qualifications

and the number of jurors, not fewer than six, shall be fixed

by law.

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

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

R. Crim. P. 3.270.

But Florida’s provision for a jury of six stems from the dawn of

the Jim Crow era, one month after federal troops were withdrawn

from the state. In 1875, the Jury Clause of the 1868 constitution was

amended to provide that the number of jurors “for the trial of causes

in any court may be fixed by law.” See Florida Fertilizer & Mfg. Co. v.

Boswell, 34 So. 241, 241 (Fla. 1903). The common law rule of a jury

of twelve was still kept in Florida while federal troops remained in the

state. There was no provision for a jury of less than twelve until the

Legislature enacted a provision specifying a jury of six in Chapter

3010, section 6. See Gibson v. State, 16 Fla. 291, 297–98 (1877);

Florida Fertilizer, 34 So. 15 241.

24

APPENDIX C

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

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

than a month after the last federal troops were withdrawn from

Florida in January 1877. See Jerrell H. Shofner, Reconstruction and

Renewal, 1865-1877, in The History of Florida 273 (Michael Gannon,

ed., first paperback edition 2018). The jury-of-six thus first saw light

at the birth of the Jim Crow era as former Confederates regained

power in southern states and state prosecutors made a concerted

effort to prevent blacks from serving on jurors.

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

supremacy. Id. at 1394; see also id. at 1417 (Kavanaugh, J.,

concurring) (non-unanimity was enacted “as one pillar of a

comprehensive and brutal program of racist Jim Crow measures

against African-Americans, especially in voting and jury service.”).

The history of Florida’s jury of six arises from the same historical

context.

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

particularly for a felony offense or crime punishable by up to life

25

APPENDIX C

imprisonment, is unconstitutional under the Sixth and Fourteenth

Amendments of the United States Constitution.

CONCLUSION

Based on the foregoing arguments and authorities, this Court

should reverse and remand for a new trial.

CERTIFICATE OF SERVICE

I certify that this brief was electronically filed with the Court

and a copy of it was served to Celia Terenzio, Assistant Attorney

General, Office of the Attorney General, Ninth Floor, 1515 N. Flagler

Drive,

West

Palm

Beach,

Florida

33401-3432,

by

email

at CrimAppWPB@MyFloridaLegal.com on June 5, 2024.

/s/ Summer Hill

Attorney for Appellant

CERTIFICATE OF FONT SIZE

I certify this brief is submitted in Bookman Old Style 14-point

font in compliance with Florida Appellate Rule 9.210(a)(2) and that

the word count is 13,000 or less exclusive of the caption, cover page,

table of contents, table of citations, certificate of compliance,

certificate of service, or signature block.

/s/ Summer Hill

Attorney for Appellant

26