Petition for Writ of Certiorari — Jermaine Shennett, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JERMAINE SHENNETT, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Benjamin Nathaniel Paley

Assistant Public Defender

Counsel of Record

Summer Ivy Hill

Assistant Public Defender

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355–7600

Bpaley@pd15.org

Shill@pd15.org

Lmattocks@pd15.org

Appeals@pd15.org

QUESTIONS PRESENTED

1. Whether Williams v. Florida, 399 U. S. 78 (1970), should be

overturned and the right to a twelve-person jury restored. Because

the Court has granted certiorari in a case that raises the same

question presented here, see Kian v. Florida, No. 25-6623, 2026 WL

1718018 (U.S. June 15, 2026), the Court should stay proceedings in

this case until it issues its decision in Kian.

2. Whether a recidivism statute authorizing a sentencing

enhancement based on nonjury findings of facts not alleged in the

charging document violates the Fifth and Sixth Amendments to the

United States Constitution.

i

PARTIES TO THE PROCEEDING

The parties to the proceeding before the Court are as follows:

Jermaine Shennett, Petitioner.

State of Florida, Respondent.

ii

RELATED PROCEEDINGS

Seventeenth Judicial Circuit of Florida:

State v. Shennett, 062022CF009294A88810 (Fla.

17th Cir. Ct. Apr. 29, 2024).

Fourth District Court of Appeal of Florida:

Shennett v. State, 4D2024-1797, 2026 WL 693009 (Fla.

4th DCA Mar. 12, 2026).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................... i

PARTIES TO THE PROCEEDING .................................................... ii

RELATED PROCEEDINGS ............................................................. iii

TABLE OF CONTENTS ...................................................................iv

TABLE OF AUTHORITIES ...............................................................vi

OPINION BELOW ........................................................................... 1

JURISDICTION ............................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 3

STATEMENT OF THE CASE ........................................................... 9

REASONS FOR GRANTING THE PETITION ................................... 10

I. Williams is wrong. ..................................................................... 10

a. Williams marked a departure from well-established precedent. . 10

b. Williams relied on the functionalist approach, which the Court has

since backed away from. .............................................................. 14

c. Williams is bad precedent and should be overturned by the Court.

.................................................................................................... 19

II. Florida’s Six-person jury law can be traced to the Jim Crow-era,

and contributed to a systematic effort to exclude African-Americans

from jury service. ......................................................................... 23

III. A Jury finding IS required for any fact that increases a

defendant’s sentence. ................................................................... 27

CONCLUSION .............................................................................. 31

iv

INDEX TO APPENDICES

A. District Court’s Decision .......................................................... 2a

B. Order Denying Petitioner’s Motion for Rehearing …………………3a

C. Initial Brief …………………………………………………………..4a–19a

v

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ................................. 28

Apprendi v. New Jersey, 530 U. S. 466 (2000)............................... 27

Ballew v. Georgia, 435 U. S. 223 (1978) ........................................ 15

Blakely v. Washington, 542 U. S. 296 (2004) ................................. 28

Brown v. State, 359 So. 3d 408 (Fla. 1st DCA 2023) ..................... 19

District of Columbia v. Heller, 554 U. S. 570 (2008) ....................... 10

Dobbs v. Jackson Women’s Health Org., 597 U. S. 215 (2022) ....... 21

Duncan v. Louisiana, 391 U. S. 145 (1968).............................. 12, 13

Erlinger v. United States, 602 U. S. 821 (2024) .................. 27, 28, 29

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 24

Gibson v. State, 16 Fla. 291 (1877) ......................................... 12, 24

Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008) .................... 20

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022) .................... 20

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2

Khorrami v. Arizona, 143 S. Ct. 22 (2022) ............................... 11, 12

Kian v. Florida, No. 25-6623, 2026 WL 1718018 (U.S. June 15, 2026)

............................................................................................... i, 31

Loper Bright Enters. v. Raimondo, 603 U. S. 369 (2024)................. 22

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 2

Mathis v. United States, 579 U.S. 500 (2016) ................................ 29

Maxwell v. Dow, 176 U. S. 581 (1900) ........................................... 13

Montejo v. Louisiana, 556 U. S. 778 (2009).................................... 21

New York State Rifle & Pistol Assn. v. Bruen, 597 U. S. 1 (2022) .... 10

Pardo v. State, 596 So. 2d 665 (Fla. 1992) .................................... 19

vi

Patton v. United States, 281 U. S. 276 (1930) ................................ 13

Pearson v. Callahan, 555 U. S. 223 (2009) .................................... 22

Ramos v. Louisiana, 590 U. S. 83 (2020) ................................. 16, 21

Roe v. Wade, 410 U. S. 113 (1973) ................................................ 22

Thompson v. Utah, 170 U. S. 343 (1898) ................................. 12, 13

United States v. Haymond, 588 U. S. 634 (2019) ........................... 28

United States v. Sprague, 282 U. S. 716 (1931) ............................. 10

Vasquez v. Hillery, 474 U. S. 254 (1986) ....................................... 20

Statutes

28 U. S. C. § 1257 ........................................................................... 2

Fla. Stat. § 775.084 ......................................................... 27, 29, 30

Fla. Stat. § 913.10 ........................................................................ 26

Other Authorities

Diamond et al., Achieving Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425 (Sept.

2009) ......................................................................................... 17

Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment

as a Prohibition against the Racial Use of Peremptory Challenges, 76

Corn. L. Rev. 1 (1990) ................................................................ 25

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) ................ 18

Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The

History of Florida 273 (Michael Gannon, ed., first paperback edition

2018) ......................................................................................... 24

Richard L. Hume, Membership of the Florida Constitutional

Convention of 1868: A Case Study of Republican Factionalism in the

Reconstruction South, 51 Fla. Hist. Q. 1 (1972) .......................... 24

vii

Robert H. Miller, Comment, Six of One Is Not a Dozen of the Other: A

Reexamination of Williams v. Florida and the Size of State Criminal

Juries, 146 U. Pa. L. Rev. 621 (1998) ......................................... 12

Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials,

127 Q.J. Of Econ. 1017 (2012) .................................................. 17

Smith & Saks, The Case for Overturning Williams v. Florida and the

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 18

William Blackstone, Commentaries on the Laws of England (1769)

............................................................................................ 11, 19

Constitutional Provisions

U. S. Const., Amdt. 6. ............................................................ passim

viii

IN THE SUPREME COURT OF THE UNITED STATES

_____________

N O.

JERMAINE SHENNETT, PETITIONER,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

Petitioner (Jermaine Shennett) respectfully petitions for a writ

of certiorari to review the judgment in this case of Florida’s Fourth

District Court of Appeal.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal has not

yet been published in the Southern Reporter. It is reported as

Shennett v. State, 4D2024-1797, 2026 WL 693009 (Fla. 4th DCA Mar.

12, 2026). A copy is provided in the appendix. See 2a.

1

JURISDICTION

The Court has jurisdiction to review final judgments or decrees

“rendered by the highest court of a state in which a decision could be

had.” 28 U. S. C. § 1257(a).

Florida’s Fourth District Court of Appeal affirmed Petitioner’s

conviction and sentence on March 12, 2026. 2a. Subsequently, the

Fourth District denied Petitioner’s motion for rehearing on April 22,

2026. 3a. Although the Florida Supreme Court is the highest state

court in Florida in which a decision could have been had, the Florida

Supreme Court has held that it does not have jurisdiction to review

district courts of appeal decisions entered without a written opinion.

See Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006); Mallet v.

State, 280 So. 3d 1091, 1092 (Fla. 2019) (holding that the Florida

Supreme Court is “a court of limited jurisdiction”). Petitioner could

thus not seek higher review at the Florida Supreme Court, meaning

the Fourth District Court of Appeal was the highest state court where

he could seek a decision. The Court has jurisdiction.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment

The Fifth Amendment provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

The Sixth Amendment

The Sixth Amendment 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 defence.

Section 913.10, Florida Statutes

Twelve persons shall constitute a jury to try all capital

cases, and six persons shall constitute a jury to try all

3

other criminal cases.

Section 775.044, Florida Statutes

(1)(a) “Habitual felony offender” means a defendant for

whom the court may impose an extended term of

imprisonment, as provided in paragraph (4)(a), if it finds

that:

1. The defendant has previously been convicted of any

combination of two or more felonies in this state or other

qualified offenses.

2. The felony for which the defendant is to be sentenced

was committed:

a. While the defendant was serving a prison sentence or

other sentence, or court-ordered or lawfully imposed

supervision that is imposed as a result of a prior

conviction for a felony or other qualified offense; or

b. Within 5 years of the date of the conviction of the

defendant’s last prior felony or other qualified offense, or

within 5 years of the defendant’s release from a prison

sentence, probation, community control, control release,

conditional release, parole or court-ordered or lawfully

imposed supervision or other sentence that is imposed as

a result of a prior conviction for a felony or other

qualified offense, whichever is later.

3. The felony for which the defendant is to be

sentenced, and one of the two prior felony convictions, is

not a violation of s. 893.13 relating to the purchase or

the possession of a controlled substance.

4. The defendant has not received a pardon for any

felony or other qualified offense that is necessary for the

operation of this paragraph.

4

5. A conviction of a felony or other qualified offense

necessary to the operation of this paragraph has not

been set aside in any postconviction proceeding.

...

(1)(d) “Violent career criminal” means a defendant for

whom the court must impose imprisonment pursuant to

paragraph (4)(d), if it finds that:

1. The defendant has previously been convicted as an

adult three or more times for an offense in this state or

other qualified offense that is:

a. Any forcible felony, as described in s. 776.08;

b. Aggravated stalking, as described in s. 784.048(3)

and (4);

c. Aggravated child abuse, as described in s.

827.03(2)(a);

d. Aggravated abuse of an elderly person or disabled

adult, as described in s. 825.102(2);

e. Lewd or lascivious battery, lewd or lascivious

molestation, lewd or lascivious conduct, or lewd or

lascivious exhibition, as described in s. 800.04 or s.

847.0135(5);

f. Escape, as described in s. 944.40; or

g. A felony violation of chapter 790 involving the use or

possession of a firearm.

2. The defendant has been incarcerated in a state

prison or a federal prison.

3. The primary felony offense for which the defendant is

to be sentenced is a felony enumerated in subparagraph

5

1. and was committed on or after October 1, 1995, and:

a. While the defendant was serving a prison sentence or

other sentence, or court-ordered or lawfully imposed

supervision that is imposed as a result of a prior

conviction for an enumerated felony; or

b. Within 5 years after the conviction of the last prior

enumerated felony, or within 5 years after the

defendant’s release from a prison sentence, probation,

community control, control release, conditional release,

parole, or court-ordered or lawfully imposed supervision

or other sentence that is imposed as a result of a prior

conviction for an enumerated felony, whichever is later.

4. The defendant has not received a pardon for any

felony or other qualified offense that is necessary for the

operation of this paragraph.

5. A conviction of a felony or other qualified offense

necessary to the operation of this paragraph has not

been set aside in any postconviction proceeding.

...

(3)(a) In a separate proceeding, the court shall determine

if the defendant is a habitual felony offender or a

habitual violent felony offender. The procedure shall be

as follows:

1. The court shall obtain and consider a presentence

investigation prior to the imposition of a sentence as a

habitual felony offender or a habitual violent felony

offender.

2. Written notice shall be served on the defendant and

the defendant’s attorney a sufficient time prior to the

entry of a plea or prior to the imposition of sentence in

order to allow the preparation of a submission on behalf

of the defendant.

6

3. Except as provided in subparagraph 1., all evidence

presented shall be presented in open court with full

rights of confrontation, cross-examination, and

representation by counsel.

4. Each of the findings required as the basis for such

sentence shall be found to exist by a preponderance of

the evidence and shall be appealable to the extent

normally applicable to similar findings.

5. For the purpose of identification of a habitual felony

offender or a habitual violent felony offender, the court

shall fingerprint the defendant pursuant to s. 921.241.

6. For an offense committed on or after October 1,

1995, if the state attorney pursues a habitual felony

offender sanction or a habitual violent felony offender

sanction against the defendant and the court, in a

separate proceeding pursuant to this paragraph,

determines that the defendant meets the criteria under

subsection (1) for imposing such sanction, the court

must sentence the defendant as a habitual felony

offender or a habitual violent felony offender, subject to

imprisonment pursuant to this section unless the court

finds that such sentence is not necessary for the

protection of the public. If the court finds that it is not

necessary for the protection of the public to sentence the

defendant as a habitual felony offender or a habitual

violent felony offender, the court shall provide written

reasons; a written transcript of orally stated reasons is

permissible, if filed by the court within 7 days after the

date of sentencing. Each month, the court shall submit

to the Office of Economic and Demographic Research of

the Legislature the written reasons or transcripts in each

case in which the court determines not to sentence a

defendant as a habitual felony offender or a habitual

violent felony offender as provided in this subparagraph.

7

...

(4)(d) The court, in conformity with the procedure

established in paragraph (3)(c), shall sentence the violent

career criminal as follows:

1. In the case of a life felony or a felony of the first

degree, for life.

2. In the case of a felony of the second degree, for a

term of years not exceeding 40, with a mandatory

minimum term of 30 years’ imprisonment.

3. In the case of a felony of the third degree, for a term

of years not exceeding 15, with a mandatory minimum

term of 10 years’ imprisonment.

8

STATEMENT OF THE CASE

Respondent (the State) charged Petitioner (Jermaine Shennett)

with (Count I) Aggravated Assault Upon an Emergency Medical Care

Provider, (Count II) Shooting Into an Occupied Vehicle, and (Count

III) Possession of a Firearm by a Convicted Felon. A six-person jury

found Petitioner guilty as charged. The trial court sentenced

Petitioner to thirty years as a Violent Career Criminal (VCC) for Count

I, thirty years as a Habitual Felony Offender (HFO) for Count II, and

thirty years as a HFO for Count III. The trial court ordered that all

three sentences should run concurrent, with credit for 565 days’ time

served. In the information, the State did not allege facts pertaining to

the requirements of Florida’s HFO and VCC statutes, and the State

did not designate which cases it was relying on for Counts II and III

for the HFO designations.

On appeal, Florida’s Fourth District Court of Appeal affirmed

Petitioner’s convictions and sentences without a written opinion. 2a.

9

REASONS FOR GRANTING THE PETITION

I. WILLIAMS IS WRONG.

In Williams v. Florida, 399 U. S. 78 (1970), the Court held that

a criminal defendant charged with a felony is not entitled to a twelveperson jury. That holding went against the plain-and-ordinary meaning of the Sixth Amendment. The Court must have understood as

much, as it relied instead on the functionalist approach to constitutional interpretation. In subsequent cases, the Court has called that

approach to constitutional interpretation into question.

Williams was wrong when it was decided, and it is wrong now.

The Court’s holding in Williams should be overturned.

a. Williams marked a departure from well-established

precedent.

When the Framers adopted the words and phrases in the Constitution, they intended that those words and phrases should be understood “in their normal and ordinary[,] as distinguished from technical[,] meaning.” United States v. Sprague, 282 U. S. 716, 731

(1931); see New York State Rifle & Pistol Assn. v. Bruen, 597 U. S. 1,

34 (2022) (“Constitutional rights are enshrined with the scope they

were understood to have when the people adopted them.” (quoting

District of Columbia v. Heller, 554 U. S. 570, 634–35 (2008))). So to

10

properly interpret the Sixth Amendment right to a trial by jury, the

Court must look at the understanding of that right when the Framers

adopted the Sixth Amendment.

“For almost all of this Nation’s history[,] and centuries before

that, the right to [a] trial by jury for serious criminal offenses meant

the right to a trial before [twelve] members of the community.”

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J., dissenting

from the denial of certiorari). In fact, William Blackstone wrote that

the right to a twelve-person jury is an ancient right that goes all the

way back to the feudal system of trial. 3 William Blackstone, Commentaries on the Laws of England 349 (1769) (“a tribunal composed

of twelve good men and true”). According to Blackstone, being tried

by a twelve-person jury “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 unanimous consent of

twelve of his neighbours and equals.” Id., at 379.

So at the time the Framers drafted, voted on, and adopted the

Sixth Amendment to the United States Constitution, the ordinary

meaning of “trial by jury” would have been that a criminal defendant

11

charged with a felony was entitled to a trial by a twelve-person jury.1

Thompson v. Utah, 170 U. S. 343, 349–50 (1898); Khorrami v. Arizona,

143 S. Ct. 22, 27 (2022) (GORSUCH, J., dissenting from the denial of

certiorari); accord Gibson v. State, 16 Fla. 291, 300 (1877) (holding

that historically, the right to a jury trial meant “a jury, according to

the common law, to be composed of twelve persons”); Robert H. Miller, Comment, Six of One Is Not a Dozen of the Other: A Reexamination

of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa.

L. Rev. 621, 633 (1998) (discussing twelve-member juries in ancient

Greek and Roman trials (myth and real)).

Because that understanding had been accepted at the time the

Framers adopted the Sixth Amendment, the Court reasoned that “[i]t

1 Later, the Framers of the Fourteenth Amendment applied the

jury-trial right (and the right to a twelve-person jury in a felony trial)

to the states through the Fourteenth Amendment’s Due Process

Clause. See Duncan v. Louisiana, 391 U. S. 145, 149 (1968) (“Because

we believe that trial by jury in criminal cases is fundamental to the

American scheme of justice, we hold that the Fourteenth Amendment

guarantees a right of jury trial in all criminal cases which—were they

to be tried in a federal court—would come within the Sixth Amendment’s guarantee.”).

12

must” have been “that the word ‘jury’” in the Sixth Amendment referred to a twelve-person jury. Thompson, 170 U. S., at 350. For the

most part, the Court’s precedents adhered to the Sixth Amendment’s

plain and ordinary meaning, holding in several cases that the Sixth

Amendment guaranteed a criminal defendant charged with a felony

a twelve-person jury. In 1900, the Court explained that “there [could]

be no doubt” that the Sixth Amendment’s jury-trial clause protected

“a jury composed, as at common law, of twelve jurors.” Maxwell v.

Dow, 176 U. S. 581, 586 (1900). Thirty years later, the Court reiterated that “the phrase ‘trial by jury’” in the Constitution incorporated

the “essential elements” of juries that “were recognized in this country and England,” including the requirement that they “consist of

twelve men.” Patton v. United States, 281 U. S. 276, 288 (1930). And

as recently as 1968, the Court remarked that “by the time our Constitution was written, [trial by jury] in criminal cases had been in

existence for several centuries and carried impressive credentials

traced by many to Magna Carta,” such as the necessary inclusion of

twelve members. Duncan v. Louisiana, 391 U. S. 145, 151–52 (1968).

Nevertheless, the Williams Court held that a criminal defendant

charged with a felony is not entitled to a twelve-person jury. By doing

13

so, the Court ignored a centuries-old tradition—one that the Framers

were very familiar with.

That departure from well-established precedent was wrong

then, and it is wrong now. The Court should grant certiorari, overturn

Williams, and restore the Sixth Amendment right to a twelve-person

jury.

b. Williams relied on the functionalist approach, which the

Court has since backed away from.

Even more troubling than the fact that the Court went against

a well-established historical tradition in Williams, was the fact that

the Court did not rely on the plain-and-ordinary meaning of the Sixth

Amendment to make that decision. Instead, the Court relied on the

functionalist approach.

Under that approach, the common understanding of juries at

the time the Constitution was adopted no longer matters. Instead,

the relevant question now is whether the “function” served by a jury

is furthered by a jury of twelve people. According to the Court in Williams, although it recognized that the Framers “may well” have had

“the usual expectation” when drafting the Sixth Amendment that jury

trials would have twelve-person juries, 399 U. S., at 98–99, such

14

“purely historical considerations” were not dispositive, id., at 99. Rather, the Court concluded 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. That

function could be served just as effectively with a six-person jury. Id.,

at 101–102 & n.48.

Since Williams, not only has the theory undergirding the

functionalist approach been heavily criticized, see Burch v. Louisiana,

441 U. S. 130, 137 (1979) (acknowledging that Williams and its

progeny “departed from the strictly historical requirements of jury

trial”), the functionalist approach itself has been revealed to not be a

workable approach to constitutional interpretation. In Ballew v.

Georgia, 435 U. S. 223 (1978), for example, the Court—in holding

that the core “function” of the Sixth Amendment was disturbed by a

five-person jury, id., at 245—admit[ted]” that it “d[id] not pretend to

discern a clear line between six members and five,” id., at 239; see

also id., at 245–46 (POWELL, J.) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).

15

Although Ballew did not overturn Williams, it revealed issues

with the functionalist approach. The Ballew Court noted that recent

research has shown that (1) “smaller juries are less likely to foster

effective group deliberation,” id., at 233; (2) smaller juries may be less

accurate and cause “increasing inconsistency” in verdict results, id.,

at 234; (3) the chance for hung juries decreases with smaller juries,

disproportionally harming the defendant, id., at 236; and (4)

decreasing jury sizes “foretell[] problems . . . for the representation of

minority groups in the community,” undermining a jury’s likelihood

of being “truly representative of the community,” id., at 236–37.

Indeed, the Court later acknowledged the impracticability of the

functionalist approach in Ramos v. Louisiana, 590 U. S. 83 (2020).

There, the Court held that the Sixth Amendment’s “trial by an

impartial jury” requirement encompasses what the term “meant at

the time of the Sixth Amendment’s adoption.” Id., at 90. Crucially, the

Court noted that its job is not to “distinguish between [1] the historic

features of common law jury trials that [it thinks] serve ‘important

enough functions to migrate silently into the Sixth Amendment and

[2] those that don’t.’” Id., at 98.

16

The same reasoning applies to the right to a twelve-person jury

at trial. When the Founders enshrined the jury-trial right in the Sixth

Amendment, they did not attach a rider stating that future judges

could adapt it based on latter-day social science views.

Williams itself identified the “function” of the Sixth Amendment

as leaving justice to the “commonsense judgment of a group of

laymen” and thus allowing “guilt or innocence” to be determined via

“community participation and [with] shared responsibility.” 399

U. S., at 100–01. That function is thwarted by reducing the number

of jurors to six.

For example, smaller juries are less representative of the

community, and they are less consistent than larger juries. See, e.g.,

Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials,

127 Q.J. Of Econ. 1017, 1049 (2012) (finding that “increasing the

number of jurors on the seated jury would substantially reduce the

variability of the trial outcomes, increase black representation in the

jury pool and on seated juries, and make trial outcomes more equal

for white and black defendants”); Diamond et al., Achieving Diversity

on the Jury: Jury Size and the Peremptory Challenge, 6 J. of Empirical

Legal Stud. 425, 427 (Sept. 2009) (stating that “reducing jury size

17

inevitably has a drastic effect on the representation of minority group

members on the jury”); Higginbotham et al., Better by the Dozen:

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

(Summer 2020) (“Larger juries are also more inclusive and more

representative of the community. . . . In reality, cutting the size of the

jury dramatically increases the chance of excluding minorities.”).

Other important considerations also weigh in favor of the

twelve-person jury. Twelve-person juries deliberate longer, recall

evidence

better,

and

rely

less

on

irrelevant

factors

during

deliberation. See Smith & Saks, The Case for Overturning Williams v.

Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008).

Minority views are also more likely to be thoroughly expressed

in a larger jury, as “having a large minority helps make the minority

subgroup more influential,” and, unsurprisingly, “the chance of

minority members having allies is greater on a twelve-person jury.”

Id., at 466. Finally, larger juries deliver more predictable results. In

the civil context, for example, “[s]ix-person juries are four times more

likely to return extremely high or low damage awards compared to

the average.” Higginbotham et al., supra, at 52.

Blackstone wrote:

18

[A] competent number of sensible and upright jurymen,

chosen by lot from among those of the middle rank, will be

found the best investigators of truth, and the surest

guardians of public justice. For the most powerful

individual in the state will be cautious of committing any

flagrant invasion of another’s right, when he knows that

the fact of his oppression must be examined and decided

by twelve indifferent men . . . .

Blackstone, supra, at 380. The Court should grant certiorari,

overturn Williams, end the functionalist approach, and hold that the

Sixth Amendment entitles a criminal defendant charged with a felony

to a twelve-person jury.

c. Williams is bad precedent and should be overturned by

the Court.

Petitioner cannot seek relief on this issue from the trial court,

as the decisions of Florida’s appellate courts on this issue, which

have uniformly refused to hold that a defendant charged with a felony

is constitutionally entitled to a twelve-person jury, see, e.g., Brown v.

State, 359 So. 3d 408, 410 n.1 (Fla. 1st DCA 2023), are binding on

Florida’s trial courts. See Pardo v. State, 596 So. 2d 665, 666 (Fla.

1992) (“[I]n the absence of interdistrict conflict, district court

decisions bind all Florida trial courts.”).

Furthermore, Petitioner cannot seek relief on this issue from

Florida’s appellate courts, because Florida’s district courts of appeal

19

have “no authority to overrule . . . precedent from the United States

Supreme Court that endorsed the use of a jury with only six members

as constitutional.” See Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th

DCA 2022) (quoting Gonzalez v. State, 982 So. 2d 77, 78 (Fla. 2d DCA

2008)).

The Court is thus Petitioner’s last and only hope to overturn

Williams.

Although Williams has been on the books for several decades,

that does not preclude it from being subject to criticism. The Court

has long held that precedent that is contrary to the plain-and-ordinary meaning of the text of the Constitution must be overturned.

Stare decisis is “the means by which [the Court] ensure[s] that

the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265

(1986). “That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional

system of government, both in appearance and in fact.” Id., at 265–

66.

20

In Dobbs v. Jackson Women’s Health Organization, 597 U. S.

215 (2022), however, the Court noted that “stare decisis is not an

inexorable command” and “is at its weakest when [the Court] interpret[s] the Constitution.” Id., at 264. In fact, “when it comes to the

interpretation of the Constitution—the ‘great charter of our liberties,’

which was meant to endure through the long lapse of the ages—[the

Court] place[s] a high value on having the matter settled right.” Ibid.

(citations omitted). And “when one of [the Court’s] constitutional decisions goes astray, the country is usually stuck with the bad decision unless [the Court] correct[s] [the] mistake.” Ibid. “Therefore, in

appropriate circumstances [the Court] must be willing to reconsider

and, if necessary, overrule constitutional decisions.” Ibid. “All Justices now on this Court agree that it is sometimes appropriate for the

Court to overrule erroneous decisions.” Ramos, 590 U. S., at 116.

Among the factors the Court considers when deciding whether

to overrule constitutional decisions are “the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. 778, 792–93

(2009). In addition, the Court also considers whether “experience has

pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555

21

U. S. 223, 233 (2009). Relying on those principles, the Court in Dobbs

overturned Roe v. Wade, 410 U. S. 113 (1973), which had been the

law of the land for nearly fifty years.

As has already been stated, Williams has proven to be “fundamentally misguided.” See Loper Bright Enterprises v. Raimondo, 603

U. S. 369, 407 (2024). Primarily, Williams does not comport with an

originalist interpretation of the Constitution. Up until Williams was

decided, the Court had long recognized that the text of the Sixth

Amendment entitled a criminal defendant charged with a felony a

twelve-person jury. Williams, for the first time in American jurisprudence, held otherwise.

Even more egregious was the fact that the Court based its decision on a functionalist approach—an approach that Ramos has called

into question.

Finally, the Court’s decision in Williams allowed Florida to continue to purposely exclude African Americans from jury service.

The Court should revisit Williams. Upon revisiting Williams, the

Court should overturn it and return to an originalist interpretation

of the Sixth Amendment.

22

II. FLORIDA’S SIX-PERSON JURY LAW CAN BE TRACED

TO THE JIM CROW-ERA, AND CONTRIBUTED TO A

SYSTEMATIC

EFFORT

TO

EXCLUDE

AFRICANAMERICANS FROM JURY SERVICE.

In addition to overturning a well-understood right by relying on

a mode of constitutional interpretation that produced results counter

to the Sixth Amendment’s purpose, the Court’s decision in Williams

also allowed Florida to continue to purposely keep African Americans

off juries. As such, “Florida does what the Constitution forbids.”

Cunningham v. Florida, 144 S. Ct. 1287, 1287 (2024) (GORSUCH, J.,

dissenting from the denial of certiorari).

In Khorrami v. Arizona, 143 S. Ct. 22 (2022), Justice Gorsuch

observed that “[d]uring the Jim Crow[-]era, some States restricted the

size of juries and abandoned the demand for a unanimous verdict as

part of a deliberate and systematic effort to suppress minority voices

in public affairs.” Id., at 27 (GORSUCH, J., dissenting from denial of

certiorari) (citations omitted). Florida’s six-person-jury law arose in

that context.

In 1875, the Jury Clause of the 1868 version of the Florida

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

23

Fertilizer & Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). The

Florida Legislature enacted chapter 3010, section 6, Laws of Florida

(1877) (which contained the jury-of-six provision) on February 17,

1877—less than a month after the last federal troops were withdrawn

from Florida. Gibson v. State, 16 Fla. 291, 294, 297–98 (1877); see

Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The

History of Florida 273 (Michael Gannon, ed., first paperback edition

2018) (stating that “there were [no federal troops] in Florida after 23

January 1877”). The six-person jury 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 African Americans from serving as jurors.

Harrison Reed, the first governor elected under the 1868 version

of the Florida Constitution, wrote to Senator Yulee that the new

constitution was constructed to bar blacks from legislative office:

“Under our Constitution the Judiciary & State officers will be

appointed & the apportionment will prevent a negro legislature.”

Richard

L.

Hume, Membership

of

the

Florida Constitutional

Convention of 1868: A Case Study of Republican Factionalism in the

Reconstruction South, 51 Fla. Hist. Q. 1, 15–16 (1972).

24

On its face, it may appear that the 1868 version of the Florida

Constitution extended the jury-service franchise to African American

men. But the historical context shows that it was part of the overall

resistance to efforts during Reconstruction to protect the rights of

African American citizens.

Furthermore, when the Florida Legislature reduced the size of

juries in felony trials from twelve to six in 1877, it also re-established

the “integrity, fair character, sound judgment and intelligence” test

for jury service. See Laws of Fla., ch. 3010 (1877). That discretionary

standard was “used to eliminate almost every black citizen from the

southern trial venire.” Douglas L. Colbert, Challenging the Challenge:

Thirteenth Amendment as a Prohibition against the Racial Use of

Peremptory Challenges, 76 Corn. L. Rev. 1, 89-90 (1990). And it

worked. In fact, after the enactment of Florida’s six-person jury law,

it was so rare for an African American to serve on a jury that it was

worthy of a news article when it happened:

• “It is strange that the presence of a negro on the jury should not

have attracted sufficient attention to have caused an inquiry

into his eligibility as a jury man.” That Federal Jury, Panama

City Pilot, Nov. 27, 1924, at 1.

25

• “At one point it looked as though the first negro juror in Monroe

County was to be selected.” Child Molesting Trial Jury Chosen,

Key West Citizen, Dec. 11, 1952, at 1, 3.

• “A negro juror was picked today to try Felix Combs, a negro

roustabout, for raping a Clearwater woman. Selection of Henry

Davis of Tarpon Springs marked one of the few times a negro

has been selected for jury duty.” Negro Juror, Sanford Herald,

Oct. 4, 1948, at 1.

• “The names of several Negroes were included in the 1950 jury

list. Last fall, the county’s first Negro juror served when Calvin

Smith was named on the venire which heard a cattle rustling

case in Circuit Court.” First Two Women are Picked for Possible

Jury Duty in County, Citrus Cnty. Chron., Feb. 16, 1950, at 1.

In Williams, the defendant attempted to correct Florida’s blatant

workaround of the Reconstruction Amendments, but the Court

refused to do so. Instead, the Court held that section 913.10 is

constitutional. In view of the foregoing, the Court should take the

opportunity to grant the petition, hold Florida’s six-person jury law

unconstitutional, and reverse Petitioner’s convictions.

26

III. A JURY FINDING IS REQUIRED FOR ANY FACT THAT

INCREASES A DEFENDANT’S SENTENCE.

Under Florida law, a trial court may sentence a defendant as an

HFO and/or a VCC if the trial court makes certain findings of fact

See Fla. Stat§§ 775.084(1)(a), (3)(a); 775.084(1)(d), (4)(d) (2020).

Florida enacted section 775.084 in 1971. Since then, the

statute has undergone several amendments. Most recently, the

Florida Legislature amended section 775.084 in 2019. In 2024, the

United States Supreme Court decided Erlinger v. United States, 602

U. S. 821, 830 (2024). There, the Court emphasized that both “[t]he

Fifth and Sixth Amendments placed the jury at the heart of our

criminal justice system.” Id., at 831. Thus, any fact that “increase[s]

the prescribed range of penalties to which a criminal defendant is

exposed,” id., at 834 (alteration in original) (quoting Apprendi v. New

Jersey, 530 U. S. 466, 490 (2000)), “must be resolved by a unanimous

jury beyond a reasonable doubt (or freely admitted in a guilty plea),”

ibid.

The Sixth Amendment guarantees that the accused has “the

right to [a] speedy and public trial, by an impartial jury,” in “all

criminal prosecutions.” Inherent “in that guarantee is an assurance

27

that a guilty verdict will issue only from a unanimous jury.” Erlinger

v. United States, 602 U. S. 821, 830 (2024). The Fifth Amendment

further guarantees that the government may not deprive an

individual of their liberty without “due process of law.” Inherent in

that guarantee is that “the government must prove to a jury every

one of its charges beyond a reasonable doubt.” Id., at 830–31.

The Fifth and Sixth Amendments, according to the Erlinger

Court, “sought to ensure that a judge’s power to punish would

‘deriv[e] wholly’ from, and remain always ‘control[led]’ by, the jury

and its verdict.” Id., at 831 (alterations in original) (quoting Blakely

v. Washington, 542 U. S. 296, 306 (2004)). “Ordinarily, common-law

crimes carried ‘specific sanctions, and “[o]nce the facts of the offense

were determined by the jury, the judge was meant simply to impose

the prescribed sentence.”’” Ibid. (quoting United States v. Haymond,

588 U. S. 634, 642 (2019)). “Even when it came to early American

statutes that gave judges a measure of discretion in selecting among

possible sentences, ‘the ranges themselves were linked to particular

facts’ found by the jury.” Ibid. (quoting Alleyne v. United States, 570

U.S. 99, 109 (2013)). Those rules guaranteed that a judge could not

impose a sentence above what the law provided for the acts found by

28

a jury of a defendant’s peers. Id., at 831–32.

Thus, the Court held that when it comes to prior convictions, a

trial court “may ‘do no more, consistent with the Sixth Amendment,

than determine what crime, with what elements, the defendant was

convicted of.’” Id., at 837–39 (quoting Mathis v. United States, 579

U. S. 500, 511–12 (2016)). Any other findings must be found by a

jury.

Here, as required by Florida law, the trial court went beyond the

simple act of finding that Petitioner had been convicted of certain

crimes. The trial court made the additional findings required by

Florida’s HFO and VCC statutes. However, under Erlinger, for

Petitioner to receive an extended sentence for having a requisite

number of crimes in his past that were committed within a certain

period of time, a jury had to make the finding, not the trial court.

Erlinger is clear: a jury must make any finding that can increase

the sentence a defendant will receive. However, the Florida

Legislature has not amended section 775.084 to reflect that. Because

sections 775.084(1)(a) and (1)(d) require a trial court to make the

factual findings for an enhanced sentence, it violates the Fifth and

Sixth Amendments to the United States Constitution.

29

There is no reason to allow Florida trial courts to continue to

impose enhanced sentences based on unconstitutional procedures—

such as Florida’s HFO and VCC statutes. Review by the Court is

needed to ensure that section 775.084 complies with Court precedent

that came out after section 775.084’s enactment.

The Court should grant Petitioner’s petition for a writ of

certiorari and stop Florida’s unlawful practice.

30

CONCLUSION

The petition for a writ of certiorari should be granted or held

pending the disposition of Kian v. Florida, No. 25-6623, 2026 WL

1718018 (U.S. June 15, 2026).

Respectfully submitted,

DANIEL EISINGER

Public Defender

Benjamin Nathaniel Paley

Assistant Public Defender

Counsel of Record

Summer Ivy Hill

Assistant Public Defender

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355–7600

Bpaley@pd15.org

Shill@pd15.org

Lmattocks@pd15.org

Appeals@pd15.org

31