Petition for Writ of Certiorari — Alex Antonio Bynes, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ALEX ANTONIO BYNES, 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

ALEX ANTONIO BYNES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2024-2524

[January 8, 2026]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach

County;

Caroline

Shepherd,

Judge;

L.T.

Case

No.

2023CF000860AXXX.

Daniel Eisinger, Public Defender, West Palm Beach, and Gary L.

Caldwell, Assistant Public Defender, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Marcus R. Kelly,

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

PER CURIAM.

Affirmed.

CIKLIN, LEVINE and SHAW, 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

February 16, 2026

ALEX ANTONIO BYNES,

Appellant(s)

v.

CASE NO. - 4D2024-2524

L.T. No. - 2023CF000860AXXX

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's January 23, 2026 motion for rehearing, issuance of written

opinion, and certification is denied.

Served:

Crim App WPB Attorney General

Gary Lee Caldwell

Sean Pentley Hux

Marcus Russell Kelly, II

Virginia Jane Murphy

Palm Beach Public Defender

KEH

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

4D2024-2524 February 16, 2026

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2024-2524 February 16, 2026

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persons from bearing a firearm.

Appellant understands that there may be strong policy

reasons for allowing the Legislature to determine what people

should be barred from possessing firearms. Many would say there

are excellent policy reasons for severely limiting the right to bear

arms, such as limiting it to the police or to a small class of persons

deemed “fit” for the responsibility of bearing arms — but the

constitution moves the power to make such policy beyond the

judge’s reach and the lawmaker’s grasp.

The statute violates our constitution on its face because it

does not regulate the manner of bearing arms and hence violates

Florida’s Declaration of Rights. Appellant’s conviction and sentence

should be reversed with instructions to dismiss the charge.

IV. SECTION 790.23, FLORIDA STATUTES, VIOLATES

THE SECOND AMENDMENT OF THE FEDERAL

CONSTITUTION AS APPLIED TO THE STATES BY THE

FOURTEENTH AMENDMENT.

The Second Amendment provides: “A well regulated Militia,

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

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

U.S. Const.

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Appellant acknowledges that section 790.23 has been held by

this Court not to violate the Second Amendment. See Fleming v.

State, No. 4D2024-0623, 2025 WL 1172339 (Fla. 4th DCA Apr. 23,

2025). See also Nelson and Edenfield.

Fleming was based on what this Court identified as “[b]inding

precedent from the United States Supreme Court.” Id. The Supreme

Court cases it cites, however, did not involve a challenge to a

statute like section 790.23. At most, those cases contain dicta

about the present issue.

Notably, the Supreme Court has reversed decisions upholding

felon-in-possession statutes for reconsideration in light of United

States v. Rahimi, 602 U.S. 680 (2024). For instance, in United

States v. Lindsey, No. 23-2871, 2024 WL 2207445, at *1 (8th Cir.

May 16, 2024), the Eighth Circuit rejected the defendant’s

argument that his felon-in-possession convicted violated the Second

Amendment, and wrote:

Precedent forecloses Lindsey's contentions. “The

longstanding prohibition on possession of firearms by

felons is constitutional.” United States v. Cunningham, 70

F.4th 502, 506 (8th Cir. 2023); see United States v.

Jackson, 69 F.4th 495, 502-06 (8th Cir. 2023) (explaining

that § 922(g)(1) is consistent with the nation's history and

tradition). And our cases rule out the “need for felony-by25

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felony litigation regarding the constitutionality of §

922(g)(1).” Jackson, 69 F.4th at 502; Cunningham, 70

F.4th at 506. Lindsey acknowledges as much.

Accordingly, his facial and as-applied constitutional

challenges to § 922(g)(1) fail.

Id. The Supreme Court vacated this decision and remanded for

reconsideration in light of Rahimi. Lindsey v. United States, 145 S.

Ct. 431 (2024). See also, e.g., Dial v. United States, No. 24-6569

(U.S. May 19, 2025); Morrissette v. United States, 145 S. Ct. 1468

(2025) (same); Canada v. United States, 145 S. Ct. 432 (2024)

(same, fourth circuit decision); Talbot v. United States, 145 S. Ct.

430 (2024) (same, tenth circuit decision). The Supreme Court would

not have vacated these decisions if it thought the issue had already

been decided in favor of such laws.

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

new standard for Second Amendment cases, and it has no bearing

on the arguments raised here. And Edenfield was decided before the

Supreme Court clarified the Second Amendment in United States v.

Rahimi, 602 U.S. 680 (2024).

In Rahimi, the Court noted the historical evolution of surety

laws allowing for the limitation of a person’s right to bear arms

based on an individualized determination that the person presented

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a physical threat to an individual seeking the surety. Id. at 695–97.

It also noted the parallel development of “going armed” laws

forbidding arming oneself “to the Terror of the people.” Id. at 697.

“Taken together, the surety and going armed laws confirm

what common sense suggests: When an individual poses a clear

threat of physical violence to another, the threatening individual

may be disarmed.” Id. at 698.

Rahimi involved a prosecution under 18 U.S.C. § 922(g)(8),

which forbids possession of a firearm while under a domestic

violence restraining order.

Under the statute, the prosecution must prove: (1) the

restraining order was issued after notice and hearing, (2) the order

contained a specific individualized prohibition that the defendant

not threaten the intimate partner or a child of the defendant or the

partner, and (3) either contained an individualized finding that the

defendant “represents a credible threat to the physical safety” of his

intimate partner or his or his partner's child, or an explicit

prohibition on attempted use, or threatened use of “physical force”

against those persons. Rahimi, 602 U.S. at 688.

At a state court hearing for a domestic violence restraining

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order, the judge found Rahimi had committed family violence, the

violence was “likely to occur again” and Rahimi posed “a credible

threat” to the “physical safety” of the petitioner and a member of

her family. Id. at 686–87. The judge issued a restraining order and

suspended Rahimi's gun license for two years. Id. at 687. During

this two year period, Rahimi committed other crimes of violence

with a firearm. Id. at 687–88. After his arrest on those charges, law

enforcement found firearms in his home along with a copy of the

restraining order. He was then charged in federal court under 18

U.S.C. § 922(g)(8).

Rahimi challenged the statute on Second Amendment

grounds.

Rejecting Rahimi’s claim, the Supreme Court determined that

the law’s “prohibition on the possession of firearms by those found

by a court to present a threat to others fits neatly within the

tradition the surety and going armed laws represent.” Id. at 688.

Unlike the narrow statute in Rahimi with its individualized

determination of dangerousness, section 790.23(1) has broad

application, covering all persons convicted of a felony with no such

individualized determination. It imposes a lifetime ban on their right

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to possess firearms, and does so with no individualized

determination of dangerousness to another person.

Appellant recognizes that — as noted in Fleming — in Rahimi,

the Court noted that Heller stated that felon-in-possession statutes

are “presumptively lawful,” Heller, 554 U.S. at 636, but the context

was as follows:

Rahimi argues Heller requires us to affirm, because

Section 922(g)(8) bars individuals subject to restraining

orders from possessing guns in the home, and in Heller

we invalidated an “absolute prohibition of handguns ... in

the home.” 554 U.S. at 636, 128 S.Ct. 2783; Brief for

Respondent 32. But Heller never established a categorical

rule that the Constitution prohibits regulations that

forbid firearm possession in the home. In fact, our

opinion stated that many such prohibitions, like those on

the possession of firearms by “felons and the mentally

ill,” are “presumptively lawful.” 554 U.S. at 626, 627, n.

26, 128 S.Ct. 2783.

Rahimi, 602 U.S. at 699.

Thus Rahimi was merely noting that Heller did not support

Rahimi’s claim. If the dicta in Heller were enough to dispose of the

issue, the Supreme Court would not have had to go further and

draw the line at whether such a statute involves an individualized

determination of dangerousness.

Unlike the temporary restraining order in Rahimi, section

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790.23 imposes a total lifetime ban on possession of firearms or

ammunition.

This broad statute does not comport with the historical

restrictions on the right to bear arms allowed by the Second

Amendment under Rahimi. Hence, section 790.23(1) is facially

unconstitutional.

Appellant submits that this Court should recede from Fleming

as being contrary to Rahimi and rule the statute unconstitutional,

reverse the conviction for count 2, and remand with instructions to

discharge Appellant.

III. APPELLANT WAS DENIED HIS RIGHT TO A TWELVEMEMBER JURY IN VIOLATION OF THE SIXTH

AMENDMENT.

Appellant recognizes that Florida allows a jury of six in noncapital cases. Art. I, § 22, Fla. Const.; § 913.10, Fla. Stat. The

Supreme Court held Florida’s six-member jury system does not

violate the Sixth Amendment as applied to the states by the Due

Process Clause of the Fourteenth Amendment in Williams v.

Florida, 399 U.S. 78 (1970). He submits, however, that Williams

was incorrectly decided and is contrary to the understanding of the

Sixth Amendment at the time of the Founding. See Cunningham v.

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State, 144 S. Ct. 1287–88 (2024) (Gorscuch, J., dissenting from

denial of certiorari). Accordingly, section 913.10, which authorizes

six-member juries in non-capital criminal cases, is facially

unconstitutional.

Appellant also recognizes that this Court has rejected similar

claims. See, e.g., 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). Nonetheless, he maintains that

the correct view is set out in Justice Gorsuch’s dissent in

Cunningham.

The error is fundamental. Waiver of the constitutional right of

trial by the proper number of jurors must be made personally by

the defendant. See Blair v. State, 698 So. 2d 1210, 1217 (Fla. 1997)

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

valid when made “in a colloquy at issue here, including a personal

on-the-record waiver,” and sufficient to pass muster under the

federal and state constitutions,” and his decision was made “toward

the end of his 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

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

DCA 1998) (reversing on grounds of fundamental error where

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

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

In this regard, Appellant recognizes that this Court wrote in

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

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 and Wallace. 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

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constitutional right.

Third, the Sixth Amendment jury right is tightly bound with

the Due Process Clause — 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 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, No. 2D20232090, 2025 WL 1386670, at *12 (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

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afford Appellant a new trial.

CONCLUSION

For the foregoing reasons, the conviction and sentence should

be reversed with directions as discussed above.

DANIEL EISINGER

Public Defender

Fifteenth Judicial Circuit

421 Third Street

West Palm Beach, Florida 33401

/s/ Gary Lee Caldwell

GARY LEE CALDWELL

Assistant Public Defender

Florida Bar No. 256919

Attorney for Appellant

(561)355-7600

gcaldwel@pd15.state.fl.us

jcwalsh@pd15.state.fl.us

appeals@pd15.state.fl.us

CERTIFICATE OF SERVICE

I certify that on 11 June 2025 a copy hereof has been

electronically filed with this Court and furnished to Celia Terenzio,

Esq., Assistant Attorney General, Counsel for Appellee, 1515 North

Flagler Drive, 9th Floor, West Palm Beach, Florida 33401-3432, by

email to:

CrimAppWPB@MyFloridaLegal.com

/s/ Gary Lee Caldwell

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

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

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