Major Florida Court Issues New Ruling on 12-Person Juries in Capital Sexual Battery Cases

October 9, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 4th District Court of Appeal shows friendliness to the idea of a twelve-person jury even in cases where death is not a possible penalty.

If you’re facing criminal charges in Florida, you may assume a jury of twelve will decide your fate. But in most cases, that’s not true, and a recent major court ruling highlights why this issue is far from settled. This blog will discuss the 4th DCA’s decision in Bartels v. State.

In Florida, a twelve-person jury is not required to be impaneled in a criminal case – including when someone faces a sentence of up to life in prison. Florida requires only six jurors for the vast majority of criminal trials – but does require twelve jurors if the offense is a capital felony (punishable by death). 

The U.S. Supreme Court held six-person juries to be constitutional in Williams v. Florida, 399 U.S. 78 (1970). More than 50 years after Williams, Florida remains an outlier on this front – as only a few U.S. states do not require 12-person juries in criminal cases (especially felony cases).

The U.S. Supreme Court’s Williams decision remains good law, but has come under scrutiny in recent years. In Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022), Justice Neil Gorsuch authored a widely-read dissenting opinion, opposing the denial of Khorrami’s writ of certiorari (petition to have a case heard before the U.S. Supreme Court, requiring four out of nine justices to agree). 

Gorsuch argued Williams v. Florida (1970) was wrongly decided – and that a 12-person jury is constitutionally required, just like a unanimous verdict (unanimous verdict requirement in all criminal cases was found in Ramos v. Louisiana, a 2020 U.S. Supreme Court ruling). Gorsuch made a few arguments in his dissent, including:

• Juries were understood to be composed of twelve members by the authors of English common law (such as William Blackstone), which inspired the Bill of Rights (particularly the Sixth Amendment to the U.S. Constitution)
• Williams ignored this history and instead prioritized judicial efficiency (focusing on time and resources, when the primary consideration should have been what common law said)
• Recent decisions by the Court (including Ramos) have shifted away from an “efficiency” focus when interpreting a defendant’s constitutional rights when the constitutional text is silent, towards an elevation of the common law 
• Empirical studies support the argument that twelve-person juries are better at recalling information, give more room for dissenting voices, and improve jury deliberations overall

Ultimately, the U.S. Supreme Court rejected Khorrami’s petition and refused to hear the case. As a result, six-person juries are still permitted in the vast majority of criminal cases in Florida.

But as previously noted, Florida law does require that in a capital felony case, a twelve-person jury be impaneled. Capital felonies include first-degree murder, capital sexual battery (victim under 12, defendant 18 or older), capital human trafficking (as of October 1, 2025) and others. This is the case even if the State does not actually seek the death penalty.

Following Justice Gorsuch’s fiery dissent in Khorrami, defendants in Florida have increasingly raised arguments that they were entitled to a twelve-person jury under the Sixth Amendment. Given the U.S. Supreme Court’s Williams decision remains in effect, appeals on this basis have consistently been denied.

However, a new opinion by a major Florida court more strongly considered the argument from a defendant that he was constitutionally entitled to a twelve-person jury in a capital sexual battery case (though he committed the offense before it was punishable by death, and the State did not seek the death penalty).

Major New Case: Bartels v. State, 410 So.3d 21 (Fla. 4th DCA, May 2025)

At trial, Bartels was convicted of 15 counts of sexual battery and lewd or lascivious molestation, six of which were capital sexual battery (victim under 12). Capital sexual battery is punishable by death in Florida as of 2023. But because Bartels was charged in 2022, a six-person jury was impaneled despite the “capital sexual battery” charge. Bartels did not object at trial.

Bartels appealed his eventual convictions on multiple grounds. The first of these was that Florida law had changed in 2022 to define sexual battery as unlawful sexual contact or penetration with the female genitals, rather than the vagina. 

As unlawful sexual penetration or contact with any portion of the female genitals (labia, clitoris, etc.) is considered sexual battery as of 2022 (not just the vagina), Bartels argued the 2022 law was improperly applied ex post facto to convict him of offenses that occurred before 2022 (the offenses spanned from 2007 to 2019).

The court quickly dispensed with this, noting that there was no need to address Bartels’s “wrong version of the statute” argument. This is because the victim’s trial testimony was sufficient to establish vaginal penetration and contact. Thus, Bartels would have been guilty under both versions of the law.

The 4th DCA then turned to address Bartels’s twelve-person jury argument. Importantly, Bartels did not request a twelve-person jury at trial. Because of this, the 4th DCA considered whether a failure to impanel a twelve-person jury in the case constituted “fundamental error” – meaning the whole trial was made unfair as a result.

The 4th DCA found no fundamental error in trying the case before a six-person jury. The court added that “alternatively, any error was harmless.”

The 4th DCA affirmed the verdict despite the impaneling of a six-person jury on the following grounds:

• The twelve-person jury argument was not made at the trial level
• The 2023 amendment to the capital sexual battery statute allowing punishment by death did not apply to Bartels’s case, because he was charged in 2022
• Neither party had addressed the constitutionality of the changed statute allowing capital punishment for sexual battery on a victim under 12 that does not result in death (which conflicts with the U.S. Supreme Court’s Kennedy v. Louisiana decision)

Notably, sexual battery on a victim under 12 by an adult defendant has always been considered “capital sexual battery” – a capital felony. But the Florida Supreme Court ruled in State v. Hogan that since the Eighth Amendment prohibits a death sentence for sexual battery not resulting in death, a twelve-person jury was not required like other capital felonies.

This was the case until 2023 – when the Florida Legislature changed the law, in conflict with the Florida Supreme Court’s 1981 Buford v. State ruling and Kennedy v. Louisiana. Because of this amendment, capital sexual battery is technically now punishable by death. 

Acknowledging this change, the 4th DCA commented:

“We agree with Appellant and the special concurring opinion that Hogan should be revisited, particularly in light of the 2023 statutory amendment.”

However, the majority ultimately decided not to certify the Florida Supreme Court because the case was tried before the 2023 amendment to the statute – so Bartels was not at risk of receiving the death penalty. 

Judge Artau, who wrote a concurring opinion, felt differently. He argued the failure to impanel a twelve-person jury likely did constitute fundamental error sufficient that violated Bartels’s due process rights. Judge Artau wrote:

“However, an argument can be made that the right to a twelve-person jury under Florida law arises under our state Constitution because included within the constitutional right of trial by jury is the right to the requisite number of jurors, given the Florida Constitution’s provision that “[t]he right of trial by jury shall be secure to all and remain inviolate.”

Judge Artau also concluded that the 2023 statutory amendment to the sexual battery statute (permitting the death penalty) was “constitutional in its entirety.” Artau distinguished Florida’s capital sexual battery statute, requiring at least two aggravating factors to be found for the death penalty, from the Louisiana law struck down in Kennedy by the U.S. Supreme Court:

“Moreover, the Louisiana statute at issue in Kennedy did not contain a list of aggravating factors specific to the crime of sexual battery and considered sexual battery on a child less than twelve to be aggravated rape, rendering a defendant automatically eligible for the death penalty absent any additional aggravating factors.”

“The Court in Kennedy explained that this fact was fatal to the Louisiana statute’s constitutionality because ‘it [was] difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way’ and that ‘[i]t [was] not a solution simply to apply to this context the aggravating factors developed for capital murder.’”

Judge Artau argued that because Florida law only permits the death penalty for capital sexual battery if additional aggravating factors are present, Florida’s 2023 law does not run afoul of the Eighth Amendment like Louisiana’s law did in 2008.

And disagreeing with the Florida Supreme Court’s reasoning in Hogan, Judge Artau concluded that Bartels was constitutionally entitled to a twelve-person jury because of the simple fact that he was charged with capital sexual battery – even if it was not punishable by death at the time. He wrote: 

“In Hogan, our supreme court acknowledged that rape or sexual battery by an adult on a child was ‘still defined as a ‘capital’ crime by the legislature[.]’ But the court ignored this legislative definition and instead redefined “a capital case [as] one where death is a possible penalty.” 

“The court then used its definition of a capital case instead of the Legislature’s definition to construe the statute “in accordance with what [it] believe[d] the legislature intended when it passed the statute[.]” However, merely finding a penalty unconstitutional does not in and of itself render the categorization of the offense as capital, for the purpose of determining how many jurors shall be empaneled, unconstitutional.”

To Judge Artau, it does not matter whether capital sexual battery can be punished by death (or if the State pursues the death penalty). The simple fact that someone is charged with capital sexual battery is sufficient to require that a 12-person jury be impaneled.

The Bartels decision, and Judge Artau’s concurrence, raise a few important points. First, it is absolutely critical to preserve arguments for a 12-person jury at trial in serious felony cases. Because this was waived, the 4th DCA reviewed Bartels’s claim using a fundamental/harmless error analysis – which likely contributed to their ruling against him.

Judge Artau’s concurrence also raises intriguing questions about the current state of Florida law surrounding sexual battery. If even a “capital felony” that is not punishable by the death penalty (under current Florida and U.S. Supreme Court precedent) requires a 12-person jury, why not life felonies or PBL felonies – which carry the same potential consequences (a life sentence)? 

In sum, the Bartels case is an intriguing example of how Florida’s courts are thinking about the right to a twelve-person jury following Khorrami. How Florida’s Supreme Court or other District Courts of Appeal will rule on this issue remains to be seen.

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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