Petition for Writ of Certiorari — David Jones, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

DAVID JONES, 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

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, FL 33401

(561) 355–7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

QUESTION PRESENTED

1. Whether Petitioner was deprived of his right, under the

Sixth and Fourteenth Amendments, to a trial by a 12-person jury?

This is the question presented in Kian v. Florida, No. 25-6623,

2026 WL 1718018 (U.S. June 15, 2026) (granting petition).

2. Whether, contrary to the Due Process and Jury Clauses, the

trial court erred in imposing an enhanced sentence of life

imprisonment under statutes that authorized that sentence based

on nonjury fact-findings upon proof by a preponderance of the

evidence?

i

PARTIES TO THE PROCEEDING

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

Petitioner, David Jones, was a criminal defendant convicted

and sentenced in Broward County, Florida. He appealed to Florida’s

Fourth District Court of Appeal, which affirmed the judgment and

sentence.

Respondent, State of Florida, prosecuted Jones and defended

the judgment and sentence on appeal in Florida’s Fourth District

Court of Appeal.

RELATED PROCEEDINGS

This case arises from these proceedings:

State v. David Jones, No. 22-005377 (Fla. 17th Judicial

Circuit).

Jones v. State, No. 4D2023-2997, 2026 WL 1408752 (Fla. 4th

DCA May 20, 2026).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................. i

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

RELATED PROCEEDINGS .............................................................. ii

TABLE OF CONTENTS .................................................................. iii

TABLE OF AUTHORITIES ...............................................................iv

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 2

STATEMENT OF THE CASE ........................................................... 8

REASON FOR GRANTING THE PETITION ..................................... 10

I. THE REASONING OF WILLIAMS v. FLORIDA HAS BEEN

REJECTED, AND THE CASE SHOULD BE OVERRULED. .......... 10

II. FLORIDA’S PRISON RELEASEE REOFFENDER AND

HABITUAL

FELONY

OFFENDER

STATUTES

ARE

UNCONSTITUTIONAL. ............................................................... 24

CONCLUSION .............................................................................. 28

INDEX TO APPENDICES

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

B. Order Denying Rehearing……………………………………………… 3a

C. Excerpts from Initial Brief ........................................................ 4a

D. Motion to Correct Sentence .................................................... 13a

C. Order Denying Motion to Correct Sentence ............................ 28a

iii

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ........ 25, 27

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 13

Baldwin v. New York, 399 U.S. 117 (1970) ................................... 12

Ballew v. Georgia, 435 U.S. 223 (1978)............................. 15, 16, 17

Brown v. Louisiana, 447 U.S. 323 (1980) ...................................... 17

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 13

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

Erlinger v. United States, 602 U.S. 821 (2024) ........................ 25, 27

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 19

Gibson v. State, 16 Fla. 291 (1877) ............................................... 19

Harvey v. State, 848 So. 2d 1060 (Fla. 2003) .................................. 8

Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022) ............................... 11

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

Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 11

McDowell v. State, 51 Fla. L. Weekly S245 (Fla. July 16, 2026) ....... 8

Patton v. United States, 281 U.S. 276 (1930) ................................. 12

Persaud v. State, 838 So. 2d 529 (Fla. 2003) .................................. 2

Powers v. Ohio, 499 U.S. 400, 415 (1991) ..................................... 23

Ramos v. Louisiana, 590 U.S. 83 (2020)............................ 10, 13, 17

State v. Johnson, 616 So.2d 1 (Fla. 1993) ....................................... 9

Williams v. Florida, 399 U.S. 78 (1970) .................................. passim

Statutes

§ 775.084, Fla. Stat. ................................................................... 3, 5

iv

§ 913.10, Fla. Stat. ............................................................... 3, 8, 10

28 U.S.C. § 1257(a) ........................................................................ 2

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 19

Ch. 3010, Laws of Fla. (1877) ....................................................... 20

Other Authorities

Carson Eckhard, “If he dies, it is but a small loss”: whiteness as

property and convict leasing in Florida 1875–1925. Ethnic and

Racial Studies, Vol. 49, Issue 10 (2026) .................................... 23

Carson Eckhard, Ragged Battalions, Plotting Liberty: Convict Leasing

and the Construction of Carceral Capitalism in Florida, 1875-1925

(2021) (B.A. thesis, University of Pennsylvania) ......................... 22

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

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425, 427

(Sept. 2009) ......................................................................... 16, 17

Douglas A. Blackmon, SLAVERY BY ANOTHER NAME: THE REENSLAVEMENT OF BLACK PEOPLE IN AMERICA FROM THE CIVIL WAR TO

WORLD WAR II (2008 ................................................................... 22

Douglas L. Colbert, Challenging the Challenge: Thirteenth

Amendment as a Prohibition against the Racial Use of Peremptory

Challenges, 76 Corn. L. Rev. 1 (1990) ........................................ 20

Gastil et al, THE JURY AND DEMOCRACY: HOW JURY DELIBERATION

PROMOTES CIVIC ENGAGEMENT AND POLITICAL PARTICIPATION, Oxford

University Press (2010). ............................................................. 24

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature (Summer 2020) ............... 16, 18

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

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

edition 2018) ............................................................................. 19

John Gastil & Phillip J. Weiser, Jury Service as an Invitation to

Citizenship: Assessing the Civic Values of Institutionalized

Deliberation, 34 Pol’y Stud. J. 605 (2006) .................................. 24

v

Matthew J. Mancini, ONE DIES, GET ANOTHER: CONVICT LEASING IN THE

AMERICAN SOUTH, 1866-1928 (1996)............................................ 23

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

127 Q.J. Of Econ. (2012) ........................................................... 16

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

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

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 23

Constitutional Provisions

Fla. Const. art. I, § 22 .................................................................... 3

U.S. Const. amend. VI .......................................................... 2, 8, 25

U.S. Const. amend. XIV ........................................................ 3, 8, 25

vi

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO.

DAVID JONES, 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

_____________

David Jones respectfully petitions for a writ of certiorari to

review the judgment of the Fourth District Court of Appeal of

Florida in this case.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal has

been reported as Jones v. State, No. 4D2023-2997, 2026 WL

1408752 (Fla. 4th DCA May 20, 2026). App.2.

1

JURISDICTION

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

conviction and sentence on May 20, 2026, citing Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022). App.2. The court denied his

timely filed motion for rehearing and for written opinion on June

10, 2026. App.3

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted).

The court has no jurisdiction to review a district court of appeal

decision like the one at bar that merely cites a case that is not

pending in the Florida Supreme Court. Persaud v. State, 838 So. 2d

529, 531-32 (Fla. 2003) (“[T]his Court does not have jurisdiction to

review per curiam decisions of the district courts of appeal that

merely affirm with citations to cases not pending review in this

Court.”). Hence, Petitioner could not seek review in that court. This

Court has jurisdiction under 28 U.S.C. § 1257(a)

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . .”

2

Section 1 of the Fourteenth Amendment of the United States

Constitution provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Article I, section 22 of the Florida Constitution provides:

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.

Section 913.10, Florida Statutes, provides:

Number of jurors.—Twelve persons shall constitute a jury

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

jury to try all other criminal cases.

Section 775.082(9)(a), Florida Statutes, provides in relevant

part:

(9)(a)1. “Prison releasee reoffender” means any defendant who

commits, or attempts to commit:

a. Treason;

b. Murder;

c. Manslaughter;

d. Sexual battery;

e. Carjacking;

f. Home-invasion robbery;

g. Robbery;

h. Arson;

i. Kidnapping;

j. Aggravated assault with a deadly weapon;

3

k. Aggravated battery;

l. Aggravated stalking;

m. Aircraft piracy;

n. Unlawful throwing, placing, or discharging of a destructive

device or bomb;

o. Any felony that involves the use or threat of physical force or

violence against an individual;

p. Armed burglary;

q. Burglary of a dwelling or burglary of an occupied structure; or

r. Any felony violation of s. 790.07, s. 800.04, s. 827.03,

s. 827.071, or s. 847.0135(5);

within 3 years after being released from a state correctional facility

operated by the Department of Corrections or a private vendor, a

county detention facility following incarceration for an offense for

which the sentence pronounced was a prison sentence, or a

correctional institution of another state, the District of Columbia,

the United States, any possession or territory of the United States,

or any foreign jurisdiction, following incarceration for an offense for

which the sentence is punishable by more than 1 year in this state.

2. “Prison releasee reoffender” also means any defendant who

commits or attempts to commit any offense listed in subsubparagraphs (a)1.a.-r. while the defendant was serving a prison

sentence or on escape status from a state correctional facility

operated by the Department of Corrections or a private vendor or

while the defendant was on escape status from a correctional

institution of another state, the District of Columbia, the United

States, any possession or territory of the United States, or any

foreign jurisdiction, following incarceration for an offense for which

the sentence is punishable by more than 1 year in this state.

3. If the state attorney determines that a defendant is a prison

releasee reoffender as defined in subparagraph 1., the state

attorney may seek to have the court sentence the defendant as a

prison releasee reoffender. Upon proof from the state attorney that

establishes by a preponderance of the evidence that a defendant is

a prison releasee reoffender as defined in this section, such

4

defendant is not eligible for sentencing under the sentencing

guidelines and must be sentenced as follows:

a. For a felony punishable by life, by a term of imprisonment for

life;

b. For a felony of the first degree, by a term of imprisonment of

30 years;

c. For a felony of the second degree, by a term of imprisonment

of 15 years; and

d. For a felony of the third degree, by a term of imprisonment

of 5 years.

Section 775.084, Florida Statutes, provides in relevant part:

(1) As used in this act:

(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.

5

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.

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

6

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.

(b) In a separate proceeding, the court shall determine if the

defendant is a three-time 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 three-time 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.

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.

...

(4)(a) The court, in conformity with the procedure established in

paragraph (3)(a), may sentence the habitual felony offender 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 30.

3. In the case of a felony of the third degree, for a term of years not

exceeding 10.

...

7

STATEMENT OF THE CASE

Petitioner David Jones was convicted by a six-person jury of

attempted second-degree murder with a deadly weapon. App.4

Attempted second-degree murder with a deadly weapon is a firstdegree felony punishable by up to thirty years in prison. §§

782.04(2), 777.04, Fla. Stat. But Petitioner was sentenced to life

imprisonment as a habitual felony offender (HFO) and prison

releasee reoffender (PRR). App.4

On appeal to the Fourth District Court of Appeal, Petitioner

argued that he was denied his right to a twelve-person jury under

the Sixth and Fourteenth Amendments and that the statute that

authorizes a jury of six, § 913.10, Fla. Stat., is unconstitutional on

its face. App.5-6. Florida law permits a defendant to raise a facial

challenge to a statute for the first time on appeal. McDowell v. State,

51 Fla. L. Weekly S245, S246 (Fla. July 16, 2026); Harvey v. State,

848 So. 2d 1060, 1063-64 (Fla. 2003); State v. Johnson, 616 So.2d

1, 3-4 (Fla. 1993).

He also argued that his prison releasee reoffender and

habitual felony offender sentence violates the Sixth and Fourteenth

Amendments, and the court could not rewrite the unconstitutional

8

statute. App.7-28.

The district court of appeal affirmed, citing a case that was not

pending in the Florida Supreme Court. App.2. Accordingly, the

Florida Supreme Court did not have jurisdiction to review

Petitioner’s case. Persaud v. State, 838 So. 2d 529, 531-32 (Fla.

2003). Petitioner’s timely filed motion for rehearing and certified

question was denied June 10, 2026.

9

REASON FOR GRANTING THE PETITION

I. THE REASONING OF WILLIAMS v. FLORIDA HAS BEEN

REJECTED, AND THE CASE SHOULD BE OVERRULED.

Petitioner was convicted of a serious felony by a six-member

jury and was sentenced to life imprisonment. The six-member jury

was authorized by section 913.10 Florida Statutes. He contended

on appeal that he was deprived of his right to a twelve-person jury

under the Sixth and Fourteenth Amendments, and notwithstanding

this Court’s decision in Williams v. Florida, 399 U.S. 78 (1970).

Florida’s Fourth District Court of Appeal affirmed. The Florida

Supreme Court had no jurisdiction to review the decision, so

Petitioner seeks review in this Court. He contends that this Court’s

decision in Williams cannot be squared with the ruling in Ramos v.

Louisiana, 590 U.S. 83 (2020), that the Sixth Amendment’s “trial by

an impartial jury” requirement encompasses what the term “meant

at the Sixth Amendment’s adoption,” id. at 90.

What the term meant was a jury of twelve, and a “mountain of

evidence” supports that. Khorrami v. Arizona, 143 S. Ct. 22, 23

(2022) (Gorsuch, J., dissenting from denial of certiorari). This Court

has

repeatedly

recognized

that

10

the

Sixth

Amendment

was

understood at the time of the founding to require a 12-member jury.

This Court said in Thompson v. Utah, 170 U.S. 343, 349-350 (1898),

that since the time of Magna Carta, the word “jury” had been

understood to mean a body of twelve people. Given that 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.

This Court continued to cite the basic principle that the Sixth

Amendment requires a twelve-person jury in criminal cases for

seventy more years. 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, this 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

11

“by the time our Constitution was written, jury trial 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, 151-152 (1968).

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 … read in the light of its history.” Baldwin v.

New York, 399 U.S. 117, 122-123 (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

12

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)

(acknowledging that Williams and its progeny “departed from the

strictly historical requirements of jury trial”).

Williams’s ruling that the Sixth Amendment permits a sixperson jury cannot stand in light of Ramos. There, this 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.” 590

U.S. at 100.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” this 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

13

think) serve ‘important enough functions to migrate silently into the

Sixth Amendment and those that don’t.’” 590 U.S. at 98. Rather,

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. 590 U.S. at 100. As the history

summarized above establishes, there can be no serious doubt that

the

common

understanding

of

the

jury

trial

during

the

Revolutionary War era was that twelve jurors were required—“a

verdict, taken from eleven, was no verdict at all. 590 U.S. at 90

(quotation marks omitted).

Williams suffered from another flaw: it was based on research

that was out of date shortly after the opinion issued. 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.” 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.

14

In the time since Williams, that determination has proven

incorrect. This Court acknowledged as much 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 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 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.

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 24515

46

(Powell,

J.)

(agreeing

that

five-member

juries

are

unconstitutional, while acknowledging that “the line between fiveand six-member 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 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.”); Shamena Anwar, et al., The Impact of Jury

Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)

(“[I]ncreasing 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.”).

Because “the 12-member jury produces significantly greater

16

heterogeneity than does the six-member jury,” Diamond et al.,

Achieving Diversity on the Jury, supra, 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. This Court recognized this in

Brown v. Louisiana, 447 U.S. 323, 333 n.12 (1980): “If a minority

viewpoint is shared by 10% of the community, a 12-member jury

may be expected to include at least 1 minority representative 72%

of the time, [and] a 6-member jury would contain 1 such person

47% of the time….”

Smaller juries increase the risk of convicting the innocent.

Brown, 447 U.S. at 332 (“[A] decline in jury size leads to less

accurate factfinding and a greater risk of convicting an innocent

person.”); accord Ballew, 435 U.S. at 234 (“Statistical studies

suggest that the risk of convicting an innocent person . . . rises as

the size of the jury diminishes.”). That drastic “consequence has

traditionally supplied some support for overruling an egregiously

wrong criminal-procedure precedent.” Ramos, 590 U.S. at 126

(Kavanaugh, J., concurring in part) (citing Malloy v. Hogan, 378

U.S. 1 (1964)).

17

Other important considerations also weigh in favor of the

twelve-person jury. Studies indicate that 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., Better by the Dozen, supra, at 52.

Importantly, the history of Florida’s rule can be traced to the

Jim Crow era. Justice Gorsuch has 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.”

Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting from denial of

18

certiorari) (citations omitted). 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, Laws of Florida (1877). See Gibson v.

State, 16 Fla. 291, 297–98 (1877); Florida Fertilizer, 34 So. at 241.

The Florida Legislature enacted chapter 3010 with the jury-ofsix provision on February 17, 1877. Gibson, 16 Fla. 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

19

state prosecutors made a concerted effort to prevent blacks from

serving on jurors.

And when the Florida Legislature reduced the size of juries

from twelve to six in 1877, it also reinstated the “integrity, fair

character, sound judgment and intelligence” test for jury service.

Ch. 3010, Laws of Fla. (1877). This 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). So rare was it for an

African American to serve on a jury that it was worthy of a news

article, and this was so well into the twentieth century:

“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.

“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.

20

“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

One Negro on the Jury, DeLand Daily News, March 3, 1915, at 3.

To top it off, the Legislature in that same session established

convict leasing. Ch. 3034, Laws of Fla. (1877). “In 1877, newly21

elected Governor George Franklin Drew officially created a penal

system of convict leasing, under which private corporations leased

or subleased prisoners of the state to access a large labor force.

Unlike the contract systems of other states, Florida’s new lease

system absolved the state of any responsibility for convicts.” Carson

Eckhard, Ragged Battalions, Plotting Liberty: Convict Leasing and

the Construction of Carceral Capitalism in Florida, 1875-1925, 27-28

(2021) (B.A. thesis, University of Pennsylvania). 1

0F

“By 1900, the South’s judicial system had been wholly

reconfigured to make one of its primary purposes the coercion of

African Americans to comply with the social customs and labor

demands of whites.” Douglas A. Blackmon, SLAVERY BY ANOTHER

NAME: THE RE-ENSLAVEMENT OF BLACK PEOPLE IN AMERICA FROM THE

CIVIL WAR TO WORLD WAR II 7-8 (2008); see also Matthew J. Mancini,

ONE DIES, GET ANOTHER: CONVICT LEASING IN THE AMERICAN SOUTH,

1866-1928 (1996) (noting the steady growth of Southern prison

populations after the establishment of convict leasing: “Florida, with

125 prisoner in 1881, had 1,071 by 1904.”); Carson Eckhard, “If he

1 Available at:

https://amc.sas.upenn.edu/sites/default/files/uploads/Eckhard_P

aper.pdf

22

dies, it is but a small loss”: whiteness as property and convict

leasing in Florida 1875–1925. Ethnic and Racial Studies, Vol. 49,

Issue 10, 2177 (2026) (“By the 1890s, leasing incarcerated people

had become a major source of revenue, and the state legislature

was advertising the opportunity to bid on convict labor across the

South.”).

This sad history casts into relief another negative consequence

of smaller juries: it denies a great number of citizens the “duty,

honor, and privilege of jury service.” Powers v. Ohio, 499 U.S. 400,

415 (1991). Many consider jury service an “amazing and powerful

opportunity and experience—one that will strengthen your sense of

humanity and your own responsibility.” United States Courts, Juror

Experiences. 2

1F

“[J]ury service is more than a noble civic duty. Participating in

the jury process can be an invigorating experience for jurors that

changes their understanding of themselves and their sense of

political power and broader civic responsibilities.” Gastil et al, THE

JURY

AND

DEMOCRACY: HOW JURY DELIBERATION PROMOTES CIVIC

2 Available at: https://www.uscourts.gov/services-forms/jury-

service/learn-about-jury-service/juror-experiences

23

ENGAGEMENT AND POLITICAL PARTICIPATION, Oxford University Press 4

(2010). Jury service is a “means of affording every citizen the

chance to step into the state’s shoes, to see the inner workings of

the justice system, and to feel first-hand the power of selfgovernment. In other words, the jury is a sacred, institutionalized

opportunity for citizens to experience the transformative power of

public deliberation.” John Gastil & Phillip J. Weiser, Jury Service as

an

Invitation

to

Citizenship:

Assessing

the

Civic

Values

of

Institutionalized Deliberation, 34 Pol’y Stud. J. 605, 619 (2006).

This Court should grant the petition, recede from Williams,

restore the ancient right to a jury of twelve and reverse Petitioner’s

convictions.

II. FLORIDA’S PRISON RELEASEE REOFFENDER AND

HABITUAL FELONY OFFENDER STATUTES ARE

UNCONSTITUTIONAL

Florida’s Prison Releasee Reoffender and Habitual Felony

Offender statutes provide for enhanced punishments when the

judge, at a nonjury proceeding, determines, by a preponderance of

the evidence, a variety of facts regarding the defendant’s prior

criminal record including the date of the defendant’s release from

incarceration. § 775.082(9)(a), 775.084 Fla. Stat. The PRR statute

24

requires the defendant to serve the maximum sentence day-for-day,

no gain time. Petitioner is currently serving mandatory life

imprisonment as a PRR and HFO. The maximum sentence based on

the jury’s verdict was 30 years.

This statutory procedure and Petitioner’s resulting sentence

are unconstitutional under the Jury and Due Process Clauses. U.S.

Const. amend. VI, XIV.

Despite the general rule forbidding a sentence enhancement

based on judicial fact-finding, the Court held in the 5-4 decision of

Almendarez-Torres v. United States, 523 U.S. 224 (1998),

that a

court may enhance a sentence based on a judge’s finding of a prior

conviction authorizing the enhancement.

The Court recently cast doubt on the correctness and viability

of Almendarez-Torres in Erlinger v. United States, 602 U.S. 821

(2024):

Almost immediately …, the decision came under scrutiny.

Jones, 526 U.S., at 249, n. 10. The Court has since

described Almendarez-Torres as “at best an exceptional

departure” from “historic practice.” Apprendi, 530 U.S.,

at 487. That decision, we have said, parted ways from the

“uniform course of decision during the entire history of

our jurisprudence.” Id., at 490. It was “arguabl[y] ...

incorrec[t].” Id., at 489. And it amounted to an “unusual

... exception to the Sixth Amendment rule in criminal

25

cases that ‘any fact that increases the penalty for a crime’

must be proved to a jury.” Pereida v. Wilkinson, 592 U.S.

224, 238 (2021) (quoting Apprendi, 530 U.S., at 490).

In separate opinions, a number of Justices have criticized

Almendarez-Torres further yet, and Justice THOMAS,

whose vote was essential to the majority in that case, has

called for it to be overruled. See, e.g., Mathis v. United

States, 579 U.S. 500 (2016) (THOMAS, J., concurring);

Descamps v. United States, 570 U.S. 254, 280 (2013)

(THOMAS, J., concurring in judgment); Shepard v. United

States, 544 U.S. 13, 27 (2005) (THOMAS, J., concurring

in part and concurring in judgment); see also Jones, 526

U.S., at 252–253 (Stevens, J., concurring); Monge v.

California, 524 U.S. 721 (1998) (Scalia, J., joined by

Souter and Ginsburg, JJ., dissenting).

Still, no one in this case has asked us to revisit

Almendarez-Torres. Nor is there need to do so today. In

the years since that decision, this Court has expressly

delimited its reach. It persists as a “narrow exception”

permitting judges to find only “the fact of a prior

conviction.” Alleyne, 570 U.S., at 111, n. 1. Under that

exception, a judge may “do no more, consistent with the

Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of.” Mathis, 579

U.S., at 511–512. We have reiterated this limit on the

scope of Almendarez-Torres “over and over,” to the point

of “downright tedium.” 579 U.S., at 510, 519. And so

understood, Almendarez-Torres does nothing to save the

sentence in this case. To determine whether Mr.

Erlinger’s prior convictions triggered ACCA’s enhanced

penalties, the district court had to do more than identify

his previous convictions and the legal elements required

to sustain them. It had to find that those offenses

occurred on at least three separate occasions. And, in

doing so, the court did more than Almendarez-Torres

allows.

Erlinger, 602 U.S. at 837–39 (footnote omitted).

26

For the reasons set out in Erlinger, the time has come to push

Almendarez-Torres

overboard.

There

is

no

reason

to

allow

governments to continue to impose enhanced sentences based on

unconstitutional procedures such as Florida’s Prison Releasee

Reofffender and Habitual Felony Offender laws.

Further, regardless of whether Almendarez-Torres’s day has

come, the Florida law and procedure are plainly unconstitutional

under Erlinger and should not be allowed to stand. Here, the court

went beyond finding the simple fact that Petitioner had been

convicted of certain crimes. It made the additional fact findings

required by the statute, including when he was convicted and when

he was released from prison.

Florida’s Prison Releasee Reoffender and Habitual Felony laws

are unconstitutional. Since those laws provide the basis for

Petitioner’s life sentence, that sentence cannot stand.

Accordingly, the sentence should be reversed and remanded to

the lower court for resentencing.

27

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

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, FL 33401

(561) 355–7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

August 2026

28