Petition for Writ of Certiorari — Kurt N. Hausch, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

KURT N. HAUSCH, 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

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

lmattocks@pd15.org

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KURT N. HAUSCH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2024-2983

[November 13, 2025]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; Michael J. Linn, Judge; L.T. Case No. 2023CF001214A.

Daniel Eisinger, Public Defender, and Gary L. Caldwell, Assistant

Public Defender, West Palm Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Briana P. Reed,

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

GROSS, GERBER and SHEPHERD, JJ., concur.

*

*

*

Not final until disposition of timely-filed motion for rehearing.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

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

December 11, 2025

KURT N. HAUSCH,

Appellant(s)

v.

CASE NO. - 4D2024-2983

L.T. No. - 2023CF001214 A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's November 18, 2025 motion for rehearing and written opinion

is denied.

Served:

Crim App WPB Attorney General

Gary Lee Caldwell

Stephen Charles Hooper

Briana Paige Reed

TP

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

4D2024-2983 December 11, 2025

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2024-2983 December 11, 2025

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II. APPELLANT WAS DEPRIVED OF HIS RIGHT TO A

TWELVE-MEMBER JURY IN VIOLATION OF THE DUE

PROCESS AND JURY CLAUSES OF THE FEDERAL

CONSTITUTION.

Florida law provides for six-member juries in non-capital

cases. § 913.10, Fla. Stat; Art. I, § 22, Fla. Const. Appellant

contends that his trial by a six-member jury violates the Jury, Due

Process, and Privileges and Immunities Jury Clauses of the federal

constitution, so that structural, fundamental constitutional error

occurred because he was deprived of this right. Amend. VI, XIV,

U.S. Const.

This issue involves a pure question of law involving

interpretation of the constitution so that review is de novo. See

State v. McAdams, 193 So. 3d 824, 829 (Fla. 2016) (holding review

is de novo as to issue involving a pure question of law requiring

interpretation of constitution). It also involves a claim of

fundamental error, which is also reviewed de novo. Nabeack v.

State, 364 So. 3d 1116, 1117 (Fla. 4th DCA 2023).

Appellant acknowledges contrary authority, as discussed

below. He further acknowledges that the Supreme Court has

recently denied review of this issue over Justice Gorsuch’s dissent.

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See Cunningham v. Florida, 144 S. Ct. 1287–88 (2024) (Gorscuch,

J., dissenting from denial of certiorari).

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

juries as small as six were constitutionally permissible, despite the

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

that the jury guaranteed by the Sixth Amendment consists “of

twelve persons, neither more nor less.”

Thompson held that the Sixth Amendment enshrined the right

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

addition to the authorities cited there, one may note that

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

and more firmly established than the unqualified right to counsel in

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

England, ch. 27 (“Of Trial and Conviction”). 1 Blackstone traced the

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

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

privilege which any subject can be enjoy or wish for, that he cannot

be affected in his property, his liberty or his person, but by the

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

content/download/Blackstone-CommentariesBk4.pdf

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unanimous consent of twelve of his neighbours and equals.” 3

Blackstone, ch. 23 (“Of the Trial by Jury”). 2

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

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

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

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

Louisiana, 590 U.S. 83 (2020), which concluded that the Sixth

Amendment’s jury requirement encompasses what the term “meant

at the Sixth Amendment’s adoption.” Id. at 90. (Of course, the

requirement that the jury be composed of men has been overturned

by a subsequent amendment – the Equal Protection Clause of the

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

127, 146 (1994).)

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

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

of the Fourteenth Amendment’s adoption for that matter, as he was

not tried by a jury of twelve. This is a structural error to which

harmless error does not apply under the principles set out in

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

content/download/Blackstone-CommentariesBk3.pdf

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Weaver v. Massachusetts, 582 U.S. 286, 295-96 (2017), and McCoy

v. Louisiana, 138 S. Ct. 1500 (2018).

The undersigned acknowledges that this Court has rejected

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

rev. denied SC2022–1597 (Fla. June 6, 2023), cert. denied No. 23–

5173 (U.S. May 28, 2024). See also Salmon v. State, 387 So. 3d 393

(Fla. 1st DCA 2024). He further acknowledges that section 913.10,

Florida Statutes, provides for six person juries in all non-capital

criminal cases, and that this provision is authorized by Article I,

section 22 of the Florida Constitution.

Although defense counsel did not raise the issue, the error is

fundamental and structural, as the conviction arose from a sheer

denial of a fundamental constitutional right. Waiver of the

constitutional right of trial by the proper number of jurors must be

made personally by the defendant. See Blair v. State, 698 So. 2d

1210, 1217 (Fla. 1997) (finding valid defendant’s agreement to

verdict by five-member jury valid when made “in a colloquy at issue

here, including a personal on-the-record waiver,” and sufficient to

pass muster under the federal and state constitutions,” and his

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decision was made “toward the end of his trial, after having ample

time to analyze the jury and assess the prosecution's case against

him. He affirmatively chose to proceed with a reduced jury as

opposed to a continuance or starting with another jury.”). A new

trial should be ordered.

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II. APPELLANT WAS DEPRIVED OF HIS RIGHT TO A

TWELVE-MEMBER JURY IN VIOLATION OF THE DUE

PROCESS AND JURY CLAUSES OF THE FEDERAL

CONSTITUTION.

Appellee says the issue is not preserved for appeal. AB 12.

Appellant agrees. That is why he has raised this issue as one of

fundamental error.

In this regard, Appellant recognizes that this Court wrote in

Albritton v. State, 360 So. 3d 1145 (Fla. 4th DCA 2023), when

denying a jury-of-twelve claim:

The defendant did not raise this argument in the trial

court. Therefore, the defendant did not preserve this

argument. See Harrell v. State, 894 So. 2d 935, 940 (Fla.

2005) (proper preservation requires a litigant to make a

timely, contemporaneous objection to place the trial

court on notice that error may have been committed and

provide the trial court with an opportunity to correct the

error at an early stage of the proceedings).

Id. at 1147.

Appellant respectfully submits that this statement in Albritton

is flawed.

First, it is contrary to Blair v. State, 698 So. 2d 1210, 1217

(Fla. 1997) (finding valid defendant’s agreement to verdict by fivemember jury valid when made “in a colloquy … including a personal

on-the-record waiver” was “sufficient to pass muster under the

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federal and state constitutions,” and Blair’s decision was made

“toward the end of his trial, after having ample time to analyze the

jury and assess the prosecution's case against him. He affirmatively

chose to proceed with a reduced jury as opposed to a continuance

or starting with another jury.”) and Wallace v. State, 722 So. 2d 913

(Fla. 2d DCA 1998) (reversing on grounds of fundamental error

where appellant was tried by five-member jury and judge did not

inform the defendant of his right to six-person jury).

Under those cases, the waiver of a constitutionally-required

number of jurors must be made by the defendant personally after

being informed of the right being relinquished.

Second, the Harrell case cited in Albritton involved a run-ofthe-mill pleading issue. It did not involve the denial of a

fundamental constitutional right.

Third, the Sixth Amendment jury right is tightly bound with

the Due Process Clause of the Fourteenth Amendment, see Erlinger

v. United States, 602 U.S. 821, 831 (2024), and issues of due

process rights and other issues of the facial constitutionality of a

statute may be raised as fundamental error. See, e.g., Edenfield v.

State, 379 So. 3d 5, 7 n.1 (Fla. 1st DCA 2023) (conviction based on

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facially invalid statute is fundamental error); State v. Johnson, 616

So. 2d 1, 3–4 (Fla. 1993) (holding a defendant may raise the

constitutionality of a sentencing statute for the first time on appeal);

Mincey v. State, 889 So. 2d 211, 212 (Fla. 4th DCA 2004) (same);

Chang v. State, 50 Fla. L. Weekly D1073, D1079, 2025 WL 1386670

(Fla. 2d DCA May 14, 2025) (“Consideration of improper sentencing

factors constitutes a due process violation that results in

fundamental error.”); Reed (erroneous jury instruction on contested

element constitutes fundamental error); Santiago-Gonzalez v. State,

301 So. 3d 157, 175 (Fla. 2020) (fundamental error may apply

where there has been “a denial of due process”); Wallace.

In the present case, fundamental error occurred and the

convictions and sentences should be reversed with instructions to

afford Appellant a new trial.

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