Major Florida Court Rejects 12-Person Jury Right in Child Pornography, Sexual Battery Case

December 4, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 4th District Court of Appeal affirmed a defendant’s conviction for various sex offenses, finding that he was entitled only to a jury of 6 members under state law – not 12.

In Florida, many may believe that they are entitled to a jury of 12 members in a criminal case. But this is incorrect, as the vast majority of jury trials in Florida (both felony and misdemeanor) occur in front of a jury of just six members. The only exception is if a defendant is accused of a capital felony (crime punishable by the death penalty) – this requires a jury of 12.

Note: Defendants in Florida charged with capital sexual battery are technically not entitled to a twelve-person jury (despite it being a “capital” crime), as the Florida and U.S. Supreme Courts have ruled it cannot be punished by death. State v. Hogan, 451 So. 2d 844 (Fla. 1984)

Florida’s jury laws differ from vast majority of U.S. states, which typically require juries of twelve – especially in serious felony cases. But since the Supreme Court’s landmark ruling in Williams v. Florida, 399 U.S. 78 (1970), Florida has continued the practice of impaneling just six jurors in almost all criminal cases, despite criticism from many advocates. 

In Williams, the U.S. Supreme Court upheld the constitutionality of six-member juries in all non-capital cases, reasoning:

• A jury of six could adequately perform the “deliberative function” necessary to ensure that a fair verdict is reached and dissenting voices are heard
• The Constitution (Sixth Amendment jury trial right) does not create a “set number” of jurors
• States should be permitted to experiment with jury sizes based on “efficiency” concerns (e.g. more jurors, higher cost), as long as this does not violate a defendant’s due process rights

However, all of these arguments have been heavily scrutinized in the decades since Williams was decided. Perhaps the most notable critic of Williams is current U.S. Supreme Court Justice Neil Gorsuch, who argued against each of these points in Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J., dissenting). 

Though the U.S. Supreme Court denied Khorrami’s petition (which would have resulted in the Court hosting an oral argument on the issue of whether to overturn Williams v. Florida, 399 U.S. 78 (1970)), Gorsuch dissented from this decision to “deny certiorari” and urged the reversal of Williams. Responding to the arguments Williams advanced, Justice Gorsuch observed:

• A wide variety of studies that have been conducted since Williams was decided have shown that juries of twelve recall information better, give more room for dissenting voices, and improve the quality of deliberations relative to a jury of six
• “History and tradition” (in particular, the English common law that laid at the root of the U.S. Constitution and Bill of Rights) consistently affirmed that criminal juries have been historically made up of 12 members, not 6
• The logic of Williams was abandoned by the U.S. Supreme Court in two subsequent rulings, Apodaca v. Oregon (which held that a jury of five members was unconstitutional, as this was too small) and Ramos v. Louisiana (which held that jury verdicts had to be unanimous based on common law, despite nothing in the Constitution saying this)

In spite of Gorsuch’s vocal opposition, however, Williams v. Florida, 399 U.S. 78 (1970) remains the law of the land. Florida continues to use 6 person juries routinely. Salmon v. State, 387 So.3d 393 (Fla. 1st DCA 2024). For more on this, click here.

In the wake of Gorsuch’s Khorrami dissent and the U.S. Supreme Court’s Ramos v. Louisiana decision (which was seen by some as a near-overruling of Williams due to its total rejection of its reasoning), many Florida defendants have begun requesting 12-person juries. They argue that Florida’s current jury laws are unconstitutional, echoing Justice Gorsuch.

One defendant, who was charged with capital sexual battery, child pornography transmission and other serious felonies recently made this argument to Florida’s 4th DCA after he was convicted by a six-person jury. 

However, the 4th DCA was unpersuaded. Let’s take a look at Koonce v. State and its implications for 12-person juries in Florida.

KEY CASE: Koonce v. State (Fla. 4th DCA, November 12, 2025)

In Koonce, the defendant (Koonce) was charged a wide variety of very serious felony offenses, including:

• Capital sexual battery (victim under 12, defendant 18 or older)
• Sexual battery by a person in familial or custodial authority (victim between 12 and 16, defendant over 18)
• Transmission of child pornography

Koonce was convicted on all counts at trial by a jury of 6 members. He was sentenced to life in prison, and appealed on various grounds – one of which was that he had the right to a twelve person jury at his trial. Citing Ramos v. Louisiana and the fact that state law on its face requires a 12-person jury for all “capital crimes,” Koonce claimed his convictions required reversal.

However, Florida’s 4th District Court of Appeal (Southeast Florida) affirmed his convictions. The 4th DCA addressed Koonce’s argument that he was entitled to a twelve-person jury under the U.S. Constitution by noting Koonce’s acknowledgment that Williams v. Florida, 399 U.S. 78 (1970) continues to be “binding precedent”:

“Here, over the defendant’s objection, the trial court empaneled a six person jury… However, the defendant argues that a twelve-person jury was required by the Sixth and Fourteenth Amendments to the United States Constitution. As the defendant acknowledges, binding precedent forecloses this argument. See Williams v. Florida, 399 U.S. 78 (1970).”

The 4th DCA then addressed Koonce’s additional claim – that under Florida law, he was entitled to a 12-person jury on the grounds that he was charged with a capital felony. The court provided the following important background:

“In State v. Hogan, 451 So. 2d 844 (Fla. 1984), the Florida Supreme Court held that sexual battery on a person less than twelve years of age is not a capital offense for purposes of determining whether the twelve person jury is required, because the Eighth Amendment to the United States Constitution prohibits a death sentence for capital sexual battery. However, two years ago, the Florida legislature amended section 794.011(2)(a) to authorize the death penalty for capital sexual battery. See Ch. 2023-25, § 1 Laws of Fla. (eff. Oct. 1, 2023).”

Koonce asserted that because the Florida Legislature changed the law in 2023 to make capital sexual battery once again punishable by death (conflicting with the current stance of the Florida and U.S. Supreme Courts), State v. Hogan, 451 So. 2d 844 (Fla. 1984) no longer applied to his case. However, the court did not agree, writing:

“We need not decide now whether Hogan should be revisited in light of the 2023 amendment. In this case, the defendant’s crimes were committed between January 1, 2017 and May 31, 2020. “[P]ursuant to article X, section 9, of the Florida Constitution, ‘the punishment in effect at the time of the crime controls the penalty at sentencing.’… Thus, we look to the 2020 version of section 794.011(2)(a) when considering whether sexual battery 8 on a child is a capital offense in this case for purposes of determining the appropriate jury size. Under this analysis, a six-person jury was constitutional.”

Because the offenses Koonce committed occurred between 2017 and 2020, this was before the law was amended to once again allow the death penalty for capital sexual battery. As this was not permitted when Koonce was charged, death was not a “possible penalty” – so his case was not “capital” for purposes of requiring a 12-person jury.

The 4th DCA did appear skeptical about Hogan’s viability (or lack thereof) in the wake of the 2023 legislative amendments. The court appeared open to considering an argument that capital sexual battery cases require a 12-person jury if the charges arise after the legislative amendments (post-2023). For more on the debate on this issue, click here.

In sum, Koonce v. State (Fla. 4th DCA, November 12, 2025) is a significant development in Florida case law on the issue of 12-person juries. The 4th DCA held that because Williams is still the law of the land, there remains no federal constitutional right to a 12-person jury.

The 4th DCA also ruled that even though Koonce was accused of a capital crime, this technically did not require a 12-person jury to be impaneled pursuant to State v. Hogan, 451 So. 2d 844 (Fla. 1984). This is because Koonce was charged before the 2023 legislative amendments that made capital sexual battery punishable by death.

The 4th DCA did express willingness to challenge Hogan if a post-2023 capital sexual battery case involving a defendant being convicted by a six-person jury came before it. But until that happens, six jurors remains the norm in Florida – including in very serious felony trials.

If someone is arrested and formally charged in Florida and concerned about jury selection in their case, 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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