Petition for Writ of Certiorari — Gary Jerome Miller, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

GARY JEROME MILLER, 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

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GARY JEROME MILLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2025-1287

[May 14, 2026]

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

Lucie County; Michael James Linn, Judge; L.T. Case No.

562022CF002121AXXXXX.

Daniel Eisinger, Public Defender, Paul Edward Petillo and Rebecca

Kelly, Assistant Public Defenders, West Palm Beach, and Edward John

Abare III of Edward J. Abare III, PLLC, Vero Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Melynda Layne

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

PER CURIAM.

Affirmed.

KUNTZ, C.J., MAY and FORST, JJ., concur.

*

*

*

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

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STATEMENT OF THE CASE AND FACTS

A. Jurisdictional Statement

A six-person jury convicted appellant of grand theft, felony

battery, and criminal mischief. R 331-32. It acquitted appellant of

kidnapping and tampering with a witness. Id. The jury also found

that appellant met the criteria for sentencing as an Habitual Felony

Offender. T 355; R 335. He was sentenced to ten years in prison as

an Habitual Felony Offender on the felony battery count, followed

by five years in prison on the grand theft count. R 394-402; T 374.

He was sentenced to time served on the criminal mischief count. T

373.

Appellant filed a premature notice of appeal. R 362, 381. The

trial court’s later-filed judgment and sentence orders vested

jurisdiction with this Court. Fla. R. App. P. 9.110(l); Neal v. State,

142 So. 3d 883, 890 (Fla. 1st DCA 2014). This Court has

jurisdiction to review a criminal judgment and sentence under

article V, section 4(b)(1), Florida Constitution; Florida Rule of

Appellate Procedure 9.140(b)(1)(A); and sections 924.02, 924.05,

and 924.06(1), Florida Statutes.

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POINT II

APPELLANT WAS DENIED HIS SIXTH AMENDMENT

RIGHT TO TRIAL BY A TWELVE-MEMBER JURY

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 this does not violate the Sixth 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. State, 144 S. Ct. 1287 (2024) (Gorscuch, J.,

dissenting from denial of certiorari).

Appellant also recognizes that this Court has rejected this

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

Nonetheless, he maintains that the correct view is set out in Justice

Gorsuch’s dissent in Cunningham. In addition, there are two cases

currently pending in the United States Supreme Court raising this

issue: Parada v. United States, No. 25-166, and Minor v. Florida, No.

24-7489. The Court ordered the government to respond to the

petition in Parada and it ordered the State to respond to the

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petition in Minor. This is some indication that the Court is once

again interested in addressing the issue.

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).

Appellant did not waive his right to a twelve-person jury. Further,

section 913.10, Florida Statutes, is unconstitutional on its face. A

defendant may raise the facial constitutionality of a statute for the

first time on appeal. In State v. Johnson, 616 So. 2d 1 (Fla. 1993);

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

Appellant’s conviction by a six-member jury violates the Sixth

Amendment to the United States Constitution. The conviction and

sentence should be reversed with instructions to afford appellant a

new trial.

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