Guzman v. State

• Citation: 350 So.3d 72
• Decision Date: 26 October 2022
• Docket Number: 4D22-0148
• Parties: Jose Luis GUZMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

350 So.3d 72

Jose Luis GUZMAN, Appellant,

v.STATE of Florida, Appellee.

No. 4D22-0148

District Court of Appeal of Florida, Fourth District.

[October 26, 2022]

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 , ––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (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, 90 S.Ct. 1893, 26 L.Ed.2d 446 (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, 120 S.Ct. 1084, 146 L.Ed.2d 1 (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 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.

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, 90 S.Ct. 1893, 26 L.Ed.2d 446 (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 , ––– U.S. ––––, 140 S. Ct. 1390, 1395, 206 L.Ed.2d 583 (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, 90 S.Ct. 1893, 26 L.Ed.2d 446 (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, 90 S.Ct. 1893 (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 eliminated." Id. at 96–97, 90 S.Ct. 1893. 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, 90 S.Ct. 1893.

"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, 90 S.Ct. 1893. "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, 90 S.Ct. 1893 (footnotes omitted).

Two years later, in Apodaca v. Oregon , 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the plurality in a 4-1-4 Court held that the Sixth Amendment permits non-unanimous verdicts in state...