Petition for Writ of Certiorari — Dustin Andrew Bishop, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

DUSTIN BISHOP, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Logan T. Mohs

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600

appeals@ pd15.state.fl.us

lmohs@pd15.state.fl.us

TABLE OF CONTENTS (APPENDIX)

Fourth District Court of Appeal Opinion in Bishop v. State. ................................... A1

Excerpt from Petitioner’s Initial Brief as Appellant Below (Case and Facts) ......... A2

Excerpt from Petitioner’s Initial Brief as Appellant Below (Argument) ........... A3-A15

i

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DUSTIN ANDREW BISHOP,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2024-2202

[May 20, 2026]

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

Lucie County; Michael Carlton Heisey, Judge; L.T. Case No.

562022CF003365AXXXXX.

Daniel Eisinger, Public Defender, and Logan Tanner Mohs, Assistant

Public Defender, West Palm Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Deborah Gail

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

PER CURIAM.

Affirmed. See Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022),

rev. denied, No. SC2022-1597, 2023 WL 3830251 (Fla. June 6, 2023), cert.

denied, --- U.S. ----, 144 S. Ct. 2595, 219 L.Ed.2d 1247 (2024).

GROSS, MAY and KLINGENSMITH, JJ., concur.

*

*

*

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

A1

STATEMENT OF THE CASE AND FACTS

The

State

charged

Appellant

Dustin

Bishop

with

selling

methamphetamine. [R. 13]. The State filed multiple notices of its intent to

seek an enhanced penalty of Habitual Felony Offender (“HFO”) pursuant to

section 775.084, Florida Statutes. [R. 31, 41].

The State’s theory of the case was that Bishop agreed to sell seven

grams of methamphetamine to a confidential informant named Katrena

Simmons. [T. 141]. Simmons was a convicted felon working with law

enforcement. [T. 141-42]. She was searched, given money and recording

devices, and made the purchase from Bishop. [T. 142-43].

The defense theory was that no sale occurred, that Simmons was

biased, that officers never actually saw anything happen, and that the jury

would not see Bishop on any recording. [T. 145-46]. . . .

The jury, composed of only six people, found Bishop guilty as

charged of sale or delivery of methamphetamine. [R. 61, 112; T. 129-30,

347]. . . .

The trial court adjudicated Bishop guilty and sentenced him to 10

years in prison. [R. 196-200].

Bishop timely appealed. [R. 190]. . . .

.

A2

IV.

Bishop was entitled to a twelve person jury under the Sixth and

Fourteenth Amendments, and he did not waive that right.

Preliminary Statement

Bishop acknowledges this Court’s ruling in Guzman v. State, 350 So.

3d 72, (Fla. 4th DCA 2022), which relied on Williams v. Florida, 399 U.S.

78, 86 (1970). Guzman and Williams hold that a six-person jury is

constitutional. However, these holdings were wrong and should be

overturned. See Ramos v. Louisiana, 590 U.S. 83, 112 (2020) (Sotomayor,

J., concurring) (describing a similar error that was “irreconcilable with not

just one, but two, strands of constitutional precedent well established both

before and after the decision.”).

In order to pursue that hope with this case, or to at least keep this

case in the appellate pipeline should another case be taken, undersigned

counsel asks this Court, if it is inclined to follow Guzman and affirm this

issue, to include a citation to Guzman in the opinion. See Sandoval v.

State, 884 So. 2d 214, 216 n.1 (Fla. 2d DCA 2004) (“Counsel has the

responsibility to make such objections at sentencing as may be necessary

to keep the defendant’s case in an appellate ‘pipeline.’”); see also R.

Regulating Fla. Bar 4-3.1 (stating that a lawyer may assert an issue

involving “a good faith argument for an extension, modification, or reversal

of existing law”); United States v. Marseille, 377 F.3d 1249, 1257 & n.14

A3

(11th Cir. 2004) (defendant making an argument he knows must lose for

purposes of preserving it for a later court).

Standard of Review

The standard of review of constitutional claims is de novo. See A.B.

v. Fla. Dept. of Children & Family Servs., 901 So. 2d 324, 326 (Fla. 3d DCA

2005).

Argument

Bishop was convicted by a jury comprised of a mere six people. See

[T. 129-30]. This was in violation of the Sixth and Fourteenth Amendments’

guarantee of a right to a twelve-person jury when the defendant is charged

with a felony.

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

more recent 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 time of the Sixth

Amendment’s adoption.” Id. at 1395; U.S. Const. amend. VI.

Prior to 1970, subjecting Bishop to a trial with only six jurors would

have indisputably violated his Sixth Amendment rights. As the Ramos

A4

Court observed, even Blackstone recognized that under the common law,

“no person could be found guilty of a serious crime unless ‘the truth of

every accusation … should … be confirmed by the unanimous suffrage of

twelve of his equals and neighbors[.]” Ramos, 140 S. Ct. at 1395. “A

‘verdict, taken from eleven, was no verdict’ at all.” Id.

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

ranging from Alabama to Missouri to New Hampshire—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, 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, 349-350 (1898) overruled on other

grounds by Collins v. Youngblood, 497 U.S. 37, 51-52 (1990). As the

Thompson Court explained, since the time of Magna Carta, the word “jury”

had been understood to mean a body of twelve people. Id. Given that

understanding had been accepted since 1215, the Court reasoned, “[i]t

must” have been “that the word ‘jury’” in the Sixth Amendment was “placed

in the constitution of the United States with reference to [that] meaning

affixed to [it].” Id. at 350.

A5

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. For example, in 1900, the Court explained that “there [could]

be no doubt” “[t]hat a jury composed, as at common law, of twelve jurors

was intended by the Sixth Amendment to the Federal Constitution.”

Maxwell v. Dow, 176 U.S. 581, 586 (1900). Thirty years later, the Court

reiterated that it was “not open to question” that “the phrase ‘trial by jury’” in

the Constitution incorporated juries’ “essential elements” as “they were

recognized in this country and England,” including the requirement that

they “consist of twelve men, neither more nor less.” 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, jury trial in criminal cases had

been in existence in England 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, 151-152

(1968). 1

1

See also, e.g., Capital Traction Co v. Hof, 174 U.S. 1, 13 (1899) (“‘Trial by

jury,’ in the primary and usual sense of the term at the common law and in

the American constitutions, is not merely a trial by a jury of 12 men” but

also contains other requirements); Rassmussen v. United States, 197 U.S.

516, 529 (1905) (“The constitutional requirement that ‘the trial of all crimes,

A6

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 are to be read in

the light of its history.” Baldwin v. New York, 399 U.S. 117, 122-24 (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

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; cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979)

except in cases of impeachment, shall be by jury,’ means, as this court has

adjudged, a trial by the historical, common-law jury of twelve persons”).

A7

(acknowledging that Williams and its progeny “departed from the strictly

historical requirements of jury trial”).

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.”

Ramos, 140 S. Ct. at 1401-02.

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 Sixth Amendment and those that

don’t.” Ramos, 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

A8

Revolutionary War era was that twelve jurors were required: “a verdict,

taken from eleven, was no verdict at all.” See id. at 1395 (quotation marks

omitted).

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.” Williams, 399 U.S. at 100.

The Court theorized that “in practice the difference between the 12-man

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 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

A9

with Williams’ assumptions. For example, Ballew noted that more recent

research showed that (1) “smaller juries are less likely to foster effective

group deliberation,” id. at 232, (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.

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; see also id. at 245-46

(Powell,

J.,

concurring)

(agreeing

that

five-member

juries

are

unconstitutional, while acknowledging that “the line between five- and sixmember juries is difficult to justify”).

Post-Ballew research has further undermined Williams. Current

empirical evidence indicates that “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

A10

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)

(“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.”). Because “the 12-member jury

produces significantly greater heterogeneity than does the six-member

jury,” Diamond et al., at 449, it increases “the opportunity for meaningful

and appropriate representation” and helps ensure that juries “represent

adequately a cross-section of the community.” Ballew, 435 U.S. at 237.

Other important considerations also weigh in favor of the twelvemember jury. For instance, studies indicate that twelve-member 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-

A11

person juries are four times more likely to return extremely high or low

damage awards compared to the average.” Higginbotham et al., at 52.

Bishop 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.

The historical background is as follows:

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) (quoting and discussing Chapter 3010, section 6, Laws of Florida

A12

(1877)); Florida Fertilizer, 34 So. at 241 (noting that previously all juries had

twelve members).

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

February 17, 1877. Gibson, 16 Fla. at 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) (“there were [no] federal troops” in Florida after 23 January 1877”).

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.

On its face the 1868 constitution extended the franchise to Black

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

resistance to Reconstruction efforts to protect the rights of Black citizens.

The constitution was the product of a remarkable series of events including

a coup in which leaders of the white southern (or native) faction took

possession of the assembly hall in the middle of the night, excluding

Radical Republican delegates from the proceedings. See Richard L. Hume,

Membership of the Florida Constitutional Convention of 1868: A Case

A13

Study of Republican Factionalism in the Reconstruction South, 51 Fla. Hist.

Q. 1, 5-6 (1972); SHOFNER, at 266. A reconciliation was effected as the

“outside” whites “united with the majority of the body’s native whites to

frame a constitution designed to continue white dominance.” Hume at 15.

The racist purpose of the resulting constitution was spelled out by

Harrison Reed, a leader of the prevailing faction and the first governor

elected under the 1868 constitution, who 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.

Hume, at 15-16. See also SHOFNER, at 266.

In Ramos, Justice Gorsuch noted that the Louisiana non-unanimity

rule arose from Jim Crow era efforts to enforce white supremacy. Ramos,

140 So. Ct. at 1394; see also id. at 1417 (Kavanaugh, J., concurring) (nonunanimity 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 is

unconstitutional under the Sixth and Fourteenth Amendments of the United

States Constitution. See U.S. Const. amend. VI, U.S. Const. amend. XIV.

A14

Finally, Bishop did not waive his Sixth Amendment right to a twelveperson jury. A defendant may waive his right to a constitutional jury, but the

“express and intelligent consent of the defendant” is required. Patton, 281

U.S. at 312. See also Johnson v. State, 994 So. 2d 960, 964 (Fla. 2008)

(holding Johnson’s general silence “did not constitute a valid waiver” to “his

right to a jury trial”).

This Court should reverse the judgment and sentence and remand for

a new trial with a twelve-person jury, as required by the Sixth and

Fourteenth Amendments to the United States Constitution.

A15