DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSE LUIS GUZMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-0148
[October 26, 2022]
Appeal from the Circuit Court for the 19th Judicial Circuit, St. Lucie
County; Lawrence M. Mirman, Judge; L.T. Case No. 562018CF001673A.
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Jose Guzman appeals his convictions and life sentences for three
counts of sexual battery on a child under 12 years old and three counts of
lewd or lascivious molestation on a child under 12 years old. We affirm
the convictions and sentences.
For the first time on appeal, Guzman argues that his convictions by a
six-person jury violated the Sixth and Fourteenth Amendments to the
United States Constitution. In support of this claim, Guzman relies upon
the reasoning of Ramos v. Louisiana,
140 S. Ct. 1390 (2020).
Assuming for the sake of argument that we may consider this issue
despite Guzman’s failure to raise it below, the Supreme Court held in
Williams v. Florida,
399 U.S. 78 (1970), that six-person juries were
constitutionally permissible. The Supreme Court has not revisited its
express holding in Williams. That Court “does not normally overturn . . .
earlier authority sub silentio.” Shalala v. Ill. Council on Long Term Care,
Inc.,
529 U.S. 1, 18 (2000).
Like the Arizona Court of Appeals, we “cannot conclude the Supreme
Court silently changed a fundamental feature of its Sixth Amendment
jurisprudence.” State v. Khorrami, No. 1 CA-CR 20-0088,
2021 WL
3197499, at *8 (Ariz. Ct. App. July 29, 2021), cert. petition pending, No.
21-1553. We have “no authority to overrule the precedent from the United
States Supreme Court that endorsed the use of a jury with only six
members as constitutional[.]” Gonzalez v. State,
982 So. 2d 77, 78 (Fla.
2d DCA 2008).
Guzman also argues that he is entitled to a new sentencing hearing on
the counts for lewd and lascivious molestation because he was a first-time
felony offender, and the trial court sentenced him above the statutory
minimum on those counts without ordering a presentence investigation
(“PSI”). Guzman raised this issue below in a motion to correct his sentence
under Florida Rule of Criminal Procedure 3.800(b)(2). The trial court
denied the motion, finding that a waiver occurred because Guzman moved
forward with sentencing after the court specifically mentioned that he was
otherwise entitled to a PSI.
For a first-time felony offender, Florida Rule of Criminal Procedure
3.710(a) provides that “[n]o sentence or sentences other than probation or
the statutorily required mandatory minimum may be imposed” until after
a PSI “has first been made and the recommendations of the Department
of Corrections received and considered by the sentencing judge.”
A PSI requirement may be waived by the defendant’s attorney. Ortiz v.
State,
9 So. 3d 774, 775 (Fla. 4th DCA 2009). A defendant’s “on-the-record
personal waiver of the right to a PSI is not required under current supreme
court precedent,” and a trial court’s failure to obtain a personal waiver
“does not constitute fundamental error.”
Id. at 775. This is because “[t]he
right to a PSI is not a fundamental, constitutional right, nor does it go to
the heart of the adjudicatory process.”
Id. at 776.
As a general proposition, “waiver is the voluntary and intentional
relinquishment of a known right, or conduct which implies the voluntary
and intentional relinquishment of a known right.” Knight v. State,
267 So.
3d 38, 46 (Fla. 1st DCA 2018) (internal quotation marks omitted). Whether
a waiver has occurred is a question of fact.
Id. The question of waiver
must be resolved “on a case-by-case basis in light of the specific facts and
the totality of circumstances of each case.”
Id.
A defendant does not waive the right to a PSI simply because defense
counsel “had an opportunity to request a presentence investigation and
an opportunity to object to the sentencing without the court having first
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ordered a presentence investigation.” Harden v. State,
290 So. 2d 551,
551 (Fla. 1st DCA 1974).
Similarly, in White v. State,
271 So. 3d 1023, 1026 (Fla. 4th DCA 2019),
we held that the defendant was entitled to resentencing where the trial
court’s error in failing to consider a mandatory PSI “was preserved in [the
defendant’s] rule 3.800(b)(2) motion” and where “the defense never
expressly waived the right to a PSI.” We emphasized that the defendant’s
right to a PSI “was never waived on the record.” Id. at 1027.
Here, the question is whether a waiver occurred. Although Ortiz held
that a defendant’s personal waiver was not required, that case involved an
on-the-record waiver by defense counsel. And although White suggests
that defense counsel must expressly waive the right to a PSI, an
examination of the record in White reveals that the issue of a PSI was never
mentioned during the sentencing hearing.
Unlike previous cases dealing with the issue of waiver of a PSI, the trial
court specifically mentioned that, apart from the mandatory life counts,
Guzman was otherwise entitled to a PSI but he “could waive it, of course.”
By contrast, Harden does not indicate that anyone mentioned a PSI at
sentencing.
Because the trial court specifically mentioned Guzman’s entitlement to
a PSI before asking the parties if they wanted to go forward with
sentencing, defense counsel waived Guzman’s right to a PSI by proceeding
to sentencing without objecting to the absence of a PSI. This conduct
“implies the voluntary and intentional relinquishment of a known right.”
Knight, 267 So. 3d at 46. The trial court alerted defense counsel to
Guzman’s right to a PSI; the right to a PSI was placed on the table in open
court and defense counsel decided to move forward with sentencing
without one. Defense counsel did not need to use the magic words “we
waive a PSI.” The trial court could reasonably find a waiver under these
circumstances.
As the trial court recognized, a PSI would have been of “little, if any,
value” because Guzman was 75 years old at the time of trial, Guzman was
already subject to mandatory sentences of life in prison on the three sexual
battery counts, and the trial court already knew that Guzman had no prior
record.
Affirmed.
DAMOORGIAN and FORST, JJ., concur.
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GROSS, J., concurs specially with opinion.
Gross, J., concurring specially.
I concur with the majority opinion. I write to explain that Guzman’s
legal argument on jury composition presents a classic example of how the
law navigates the shifting sands of constitutional analysis. If the United
States Supreme Court revisits its earlier precedent, Florida criminal law
would need to make significant adjustments to the new normal.
Guzman argues that his convictions by a six-person jury violated the
Sixth and Fourteenth Amendments to the United States Constitution.
Although the Supreme Court held in Williams v. Florida,
399 U.S. 78
(1970), that six-person juries were constitutionally permissible, Guzman
argues that Williams is “impossible to square” with the Supreme Court’s
ruling in Ramos v. Louisiana,
140 S. Ct. 1390, 1395 (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.”
On the merits of the constitutional issue, the State responds that the
United States Supreme Court has expressly upheld the constitutionality
of Florida’s system of six-person juries in non-death penalty criminal
cases.
Discussion
The Sixth Amendment to the United States Constitution guarantees
that “[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .”
In Williams v. Florida,
399 U.S. 78, 86 (1970), the Court held that a 12-
person jury “is not a necessary ingredient of ‘trial by jury,’” and that the
six-person jury provided for by Florida law did not violate the Sixth
Amendment as applied to the States through the Fourteenth Amendment.
Writing for the Court, Justice White proclaimed that “while sometime in
the 14th century the size of the jury at common law came to be fixed
generally at 12, that particular feature of the jury system appears to have
been a historical accident, unrelated to the great purposes which gave rise
to the jury in the first place.”
Id. at 89–90 (footnotes omitted).
The Court looked to the drafting history of the Sixth Amendment,
emphasizing that an earlier draft’s “provisions that would have explicitly
tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were
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eliminated.”
Id. at 96–97. Reasoning that there was “no indication in ‘the
intent of the Framers’ of an explicit decision to equate the constitutional
and common-law characteristics of the jury,” the Court turned to “other
than purely historical considerations to determine which features of the
jury system, as it existed at common law, were preserved in the
Constitution.”
Id. at 99.
“The relevant inquiry,” the Court observed, “must be the function that
the particular feature performs and its relation to the purposes of the jury
trial.”
Id. at 99–100. “Measured by this standard,” the Court said, “the
12-man requirement cannot be regarded as an indispensable component
of the Sixth Amendment,” because “neither currently available evidence
nor theory suggests that the 12-man jury is necessarily more
advantageous to the defendant than a jury composed of fewer members.”
Id. at 100–02 (footnotes omitted).
Two years later, in Apodaca v. Oregon,
406 U.S. 404 (1972), the
plurality in a 4-1-4 Court held that the Sixth Amendment permits non-
unanimous verdicts in state criminal trials, even though the Sixth
Amendment requires unanimous verdicts in federal criminal trials.
Justice White, writing for the plurality, applied a Williams-style inquiry
focusing upon “the function served by the jury in contemporary society”
and concluded that the requirement of unanimity was not “of
constitutional stature.” 1
Id. at 406, 410.
In Ballew v. Georgia,
435 U.S. 223, 239 (1978), the Court reaffirmed
Williams but held that “the purpose and functioning of the jury in a
criminal trial is seriously impaired, and to a constitutional degree, by a
reduction in size to below six members.” The Court again emphasized that
“[r]ather than requiring 12 members, . . . the Sixth Amendment mandated
a jury only of sufficient size to promote group deliberation, to insulate
members from outside intimidation, and to provide a representative cross-
section of the community.”
Id. at 230.
The Supreme Court’s constitutional analysis took a turn in 2020. In
Ramos v. Louisiana,
140 S. Ct. 1390 (2020), the Court revisited the issue
of unanimity; it overruled Apodaca and held that the Sixth Amendment
1 The fifth vote in support of the Court’s judgment came from Justice Powell, who
reasoned that the Sixth Amendment requires unanimity but that this element
was not incorporated against the States under the Due Process Clause of the
Fourteenth Amendment. Johnson v. Louisiana,
406 U.S. 366, 369–71 (1972)
(Powell, J., concurring).
5
right to a jury trial—as incorporated against the States by way of the
Fourteenth Amendment—requires a unanimous verdict to convict a
defendant of a serious offense. The Court concluded that the original
meaning of the term “trial by an impartial jury” unmistakably required a
unanimous verdict:
Wherever we might look to determine what the term “trial by
an impartial jury . . . ” meant at the time of the Sixth
Amendment’s adoption—whether it’s the common law, state
practices in the founding era, or opinions and treatises written
soon afterward—the answer is unmistakable. A jury must
reach a unanimous verdict in order to convict.
Id. at 1395 (ellipsis added).
The Ramos majority opinion does not cite Williams or specifically
address the issue of jury size. Ramos was concerned with the concept of
unanimity. However, the opinion contains references to the common law
requirement of a 12-person jury and suggests that the Sixth Amendment
affords a right to the essential elements of a trial by jury as understood
and applied at common law:
The requirement of juror unanimity emerged in 14th
century England and was soon accepted as a vital right
protected by the common law. As Blackstone explained, 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,
indifferently chosen, and superior to all suspicion.” A
“‘verdict, taken from eleven, was no verdict’ ” at all.
This same rule applied in the young American States. . . .
[C]onsistent with the common law, state courts appeared to
regard unanimity as an essential feature of the jury trial.
It was against this backdrop that James Madison drafted
and the States ratified the Sixth Amendment in 1791. By that
time, unanimous verdicts had been required for about 400
years. If the term “trial by an impartial jury” carried any
meaning at all, it surely included a requirement as long and
widely accepted as unanimity.
...
6
Nor is this a case where the original public meaning was
lost to time and only recently recovered. This Court has,
repeatedly and over many years, recognized that the Sixth
Amendment requires unanimity. As early as 1898, the Court
said that a defendant enjoys a “constitutional right to demand
that his liberty should not be taken from him except by the
joint action of the court and the unanimous verdict of a jury
of twelve persons.” A few decades later, the Court elaborated
that the Sixth Amendment affords a right to “a trial by jury
as understood and applied at common law, . . .
includ[ing] all the essential elements as they were
recognized in this country and England when the
Constitution was adopted.” . . .
There can be no question either that the Sixth
Amendment’s unanimity requirement applies to state and
federal criminal trials equally. This Court has long explained
that the Sixth Amendment right to a jury trial is “fundamental
to the American scheme of justice” and incorporated against
the States under the Fourteenth Amendment. . . . So if the
Sixth Amendment’s right to a jury trial requires a
unanimous verdict to support a conviction in federal
court, it requires no less in state court.
Id. at 1395–97 (emphasis added; second alteration in original; footnotes
omitted).
Rejecting the “breezy cost-benefit analysis” of the Apodaca plurality, the
Ramos court explained that the “deeper problem” with Apodaca “is that
the plurality subjected the ancient guarantee of a unanimous jury verdict
to its own functionalist assessment in the first place.”
Id. at 1401–02. Any
functionalist assessment “overlooks the fact that, at the time of the Sixth
Amendment’s adoption, the right to trial by jury included a right to a
unanimous verdict.”
Id. at 1402. The Court also criticized Apodaca’s
reliance on a “snippet” of ambiguous drafting history: “So rather than
dwelling on text left on the cutting room floor, we are much better served
by interpreting the language Congress retained and the States ratified.”
Id. at 1400.
To be sure, Ramos did not overrule Williams. Ramos dealt with the
issue of unanimity, while Williams dealt with the issue of numerosity.
Although related, these are distinct issues. As the Arizona Court of
Appeals observed, the Supreme Court in Ramos “did not address any issue
of constitutionally permissible jury size, much less overrule Williams.”
7
State v. Khorrami, No. 1 CA-CR 20-0088,
2021 WL 3197499, at *8 (Ariz.
Ct. App. July 29, 2021), cert. petition pending, No. 21-1553.
It is a stretch to say that Ramos “effectively overruled” Williams. Yet, if
applied to the issue of jury size, the originalist analysis in Ramos would
undercut Williams’s functionalist underpinnings. At a minimum, Ramos—
which relied on the original meaning of the Sixth Amendment rather than
an analysis of the jury’s role in contemporary society—suggests that
Williams was wrongly decided. As Judge Makar has pointed out, “[i]t
seems a small step from the demise of the reasoning in Apodaca and [its
companion case] as announced in Ramos to conclude that the reasoning
in Williams, upon which both decisions relied, is also in jeopardy.” Phillips
v. State,
316 So. 3d 779, 788 (Fla. 1st DCA 2021) (Makar, J., concurring);
see also Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting) (“Repudiating the
reasoning of Apodaca will almost certainly prompt calls to overrule
Williams.”).
Under the reasoning of Ramos, Williams is subject to criticism on the
ground that it “subjected the ancient guarantee of a [12-person jury] to its
own functionalist assessment in the first place.” 140 S. Ct. at 1401–02.
Indeed, Ramos rejected not only Apodaca’s reliance upon the “function” of
a jury in “contemporary society,” but also Apodaca’s reliance upon a
snippet of ambiguous drafting history.
Thus, Ramos repudiated both the historical analysis and the functional
analysis in Apodaca, which relied heavily on the Court’s analysis in
Williams. So, like Wile E. Coyote momentarily suspended in midair after
running off a cliff, Williams hovers in the legal ether, waiting for further
examination by the Supreme Court.
Guzman has a credible argument that the original public meaning of
the Sixth Amendment right to a “trial by an impartial jury” included the
right to a 12-person jury. See, e.g., 2 J. Story, Commentaries on the
Constitution of the United States § 1779, n.2 (5th ed. 1891) (“A trial by jury
is generally understood to mean . . . a trial by a jury of twelve men,
impartially selected, who must unanimously concur in the guilt of the
accused before a legal conviction can be had.”); Thompson v. Utah,
170
U.S. 343, 349 (1898) (concluding that a “jury” within the meaning of the
Sixth Amendment is “a jury constituted, as it was at common law, of twelve
persons, neither more nor less”), abrogated by Williams v. Florida,
399 U.S.
78 (1970); Baldwin v. New York,
399 U.S. 117, 122, 124 (1970) (Harlan,
J., concurring in part) (proclaiming that “before today it would have been
unthinkable to suggest that the Sixth Amendment’s right to a trial by jury
is satisfied by a jury of six,” and describing the Williams majority as
8
“stripping off the livery of history from the jury trial” by disregarding the
“intent of the Framers” and the Court’s frequent reminders that
constitutional “provisions are framed in the language of the English
common law, and are to be read in the light of its history”); Williams, 399
U.S. at 117 (Marshall, J., dissenting in part) (“I adhere to the decision of
the Court in [Thompson] that the jury guaranteed by the Sixth Amendment
consists ‘of twelve persons, neither more nor less.’ As I see it, the Court
has not made out a convincing case that the Sixth Amendment should be
read differently than it was in Thompson even if the matter were now before
us de novo—much less that an unbroken line of precedent going back over
70 years should be overruled.”).
As Judge Makar wrote in a prescient opinion that predated Ramos, “the
future of jury size jurisprudence lies in the United States Supreme Court,
which could update its functional approach based on contemporary social
science research, abandon Williams and return to the originalist position
of twelve-member juries, or—like it has done for four decades—leave it be.”
Lessard v. State,
232 So. 3d 13, 18 (Fla. 1st DCA 2017) (Makar, J.,
concurring).
* * *
Not final until disposition of timely filed motion for rehearing.
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