Florida Supreme Court: Not All ‘Capital’ Crimes Get 12-Person Jury

November 11, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes, Violent Crimes Social Share

Under Florida law, all capital felonies require the impanelment of a 12-person jury. But a 1984 Florida Supreme Court ruling creates an exception to this rule that continues to be debated.

In Florida, the vast majority of criminal cases are tried by juries composed of six members. In both felony and misdemeanor cases, Florida’s jury laws require just half a dozen individuals to sit on a jury. This differs from the vast majority of U.S. states and the federal system, which require a jury of twelve.

Florida’s jury laws are more than a century old, and the constitutionality of six-person juries was upheld by the U.S. Supreme Court in Williams v. Florida, 399 U.S. 78 (1970).

In Williams, the U.S. Supreme Court held that Florida could continue to use six-person juries for the following reasons:

• The Sixth Amendment of the U.S. Constitution (which establishes the jury trial right) does not explicitly state a number of jurors that are required
• Six members is sufficient to allow a jury to perform the “deliberative function” (group deliberation, making room for dissenters, etc.)
• A twelve-person jury requirement would be a less efficient use of court resources, so states should be allowed to “experiment” if this is not legally forbidden

Since Williams, some of these arguments have come under significant scrutiny. In the decades after Williams, the U.S. Supreme Court has held that a five-person jury is insufficient (violates the Sixth Amendment, due to too few jurors), and that jury verdicts in all federal and state trials must be unanimous before a conviction can occur (Ramos v. Louisiana, Ballew v. Georgia).

The Court rooted both of these decisions in a common law approach to the Sixth Amendment, which evaluated the history and constitutional tradition underlying the ratification of the Bill of Rights rather than embracing an “efficiency-based” perspective. For more on why this approach tends to support a 12-person jury requirement, click here.

Note: Various studies released after Williams have supported the idea that twelve-person juries improve quality of deliberations, allow for more dissenting voices, and recall information better than six-person juries. For more on that, click here.

Like every other U.S. jurisdiction, Florida law requires 12 jurors to be impaneled in all capital cases. There are two schools of thought as to what constitutes a “capital case” in Florida for purposes of requiring a twelve-person jury. They are:

• School #1: A 12-person jury is required any time someone is charged with an offense that is punishable by death under Florida law (regardless of if the death penalty is sought in the defendant’s case)
• School #2: A 12-person jury is required anyone is charged with an offense that is designated “capital” under Florida law

You may be asking – aren’t these the same thing, because a “capital felony” is simply a felony that is punishable by death? Though this is a logical question that seems to have a clear answer, the reality is more complicated. This is because there is one capital offense that has not been punishable by death in Florida since 1981 – capital sexual battery.

In Buford v. State, 403 So. 2d 943 (Fla. 1981), the Florida Supreme Court held that imposing the death penalty for any crime other than murder, including capital sexual battery (victim under 12, defendant 18 or older) is unconstitutional cruel and unusual punishment. As a result, no Florida defendant has faced the death penalty as a possible punishment for this offense post-Buford.

Prior to Buford, capital sexual battery cases were tried with 12 jurors. But after Buford, some trial courts throughout the state reasoned that if capital sexual battery no longer had a possible penalty of death (in any case), it was really no longer a capital crime. As a result, some courts chose to impanel 6-person juries in capital sexual battery cases rather than twelve.

This set off a wave of appeals, one of which ultimately made it to the Florida Supreme Court. There, the question was answered – is a 12-person jury required in every “capital” case, or only if the offense can be legally punished by death? Let’s take a look at the Court’s answer.

KEY CASE: State v. Hogan, 451 So. 2d 844 (Fla. 1984)

In Hogan, the defendant (Hogan) was charged with capital sexual battery and kidnapping of a victim under the age of 11. As Hogan’s trial occurred after Buford v. State took the death penalty off the table as a potential punishment for capital sexual battery, the trial judge impaneled a six-person jury to hear Hogan’s case. He was convicted on both counts.

Following his conviction, Hogan appealed to Florida’s 4th District Court of Appeal. He argued that because capital sexual battery remained on the books as a “capital” offense – and Florida law required twelve-person juries in all capital cases – he remained entitled to a jury of a dozen.

The 4th DCA held that because of Buford v. State, 403 So. 2d 943 (Fla. 1981), capital sexual battery was no longer a capital crime, as execution was off the table as a potential penalty. On the grounds that capital sexual battery was now a life felony (post-Buford), the 4th DCA upheld Hogan’s conviction by a jury of six.

Hogan’s case went to the Florida Supreme Court next. Hogan argued the 4th DCA erred in characterizing capital sexual battery as a non-capital crime – as this remained its statutory designation post-Buford. The Florida Supreme Court agreed with Hogan that capital sexual battery technically remains classified as a capital offense. 

But despite recognizing this, the Court held that Hogan was not entitled to a twelve-person jury. This is because, for purposes of requiring a twelve-person jury, the Court defined a “capital” offense as one where death is a possible penalty. Because this was no longer true of capital sexual battery, the Court affirmed Hogan’s conviction by a six-person jury:

“Although we recognize that in doing so we present a chameleon-like appearance, we approve the district court’s holding that Hogan could be tried by a jury of six rather than twelve persons. … For the purposes of defining ‘capital’ under that statute and rule we hold that a capital case is one where death is a possible penalty.”

“Sexual battery of a child, therefore, while still defined as a “capital” crime by the legislature, is not capital in the sense that a defendant might be put to death. Because the death penalty is no longer possible for crimes charged under subsection 794.011(2), a twelve-person jury is not required when a person is tried under that statute. Our construction of the statute and rule is in accordance with what we believe the legislature intended when it passed the statute, as did we when we enunciated the rule.”

In essence, the Court concluded that just because an offense is “capital,” does not mean that it requires a twelve-person jury. After Buford, the Florida Supreme Court views capital sexual battery as “CINO” (Capital In Name Only). It does not require a twelve-person jury. 

Though Hogan remains the law in Florida today, it has been subject to significant criticism. Many have argued that based on a textualist reading of Florida’s Rules of Criminal Procedure and the Florida Constitution, “capital” means “capital.” If an offense is designated as capital, according to Hogan’s detractors, the law requires a twelve-person jury.

This school of thought is only growing after Florida’s 2023 amendments to its capital sexual battery statute. That year, the Florida Legislature reinstated the death penalty as a possible punishment for capital sexual battery. Though the Florida Supreme Court and U.S. Supreme Court technically forbid such a sentence, state law currently does allow it (as of 2023).  

So, are Hogan’s days numbered? This is an important question, especially given the fact that the Florida Legislature has now brought the death penalty back for capital sexual battery. In spite of that, however, no defendant has yet faced the death penalty for this crime (and the State has not sought it).

There are various likely reasons for this. Given the U.S. Supreme Court (Kennedy v. Louisiana) and Florida’s Supreme Court are in clear conflict with the new statute, the State may be reluctant to pursue capital punishment in a capital sexual battery case because this is certain to incite a flurry of legal challenges.

Post-2023, some challenges have already been heard. For example, in Bartels v. State (2025), Florida’s 4th DCA called into question the continued vitality of Hogan – now that capital sexual battery once again is punishable by death (just like other capital crimes, such as first-degree murder).

Though the Bartels court declined to certify conflict with Hogan because Bartels was tried before the 2023 legislative amendments, the case presents an intriguing preview of the legal battles to come on this issue.

In sum, the Florida Supreme Court’s landmark ruling in State v. Hogan, 451 So. 2d 844 (Fla. 1984) clarifies that not all capital felony trials in the state require a twelve-person jury. To be entitled to a twelve-person jury, a defendant must be charged with an offense where death is a possible punishment under state law.

After the Court’s Buford v. State, 403 So. 2d 943 (Fla. 1981) decision, this was no longer true of capital sexual battery. But now that the Florida Legislature has called Buford “wrongly decided” and once again put the death penalty on the table as a potential punishment for this offense, can Hogan really be said to remain good law?

The answer, for now, is yes. However, this may change – especially if (and when) a defendant is convicted of capital sexual battery and the State tries to seek the death penalty. Though this has not yet occurred, observers should keep an eye out for it.

If someone is arrested and formally charged in Florida and concerned about twelve-person juries and jury selection, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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