HIMMELEIN
v.
STATE OF FLORIDA
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Florida's use of a six-person jury for noncapital criminal cases does not violate the Sixth or Fourteenth Amendment and does not constitute fundamental error.
[1] A defendant's trial on noncapital charges by a six-person jury does not constitute fundamental error and does not violate the Sixth or Fourteenth Amendment, as established by Williams v. …
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In Williams v. Florida, 399 U.S. 78, 86 (Fla. 1970), the United States Supreme Court held that Florida's use of a six-person jury does not violate the Sixth or Fourteenth Amendment. The Court reasoned that no historical evidence shows that a twelveperson jury was an indispensable component of the Sixth Amendment or that the Framers intended to require a twelve-person jury.”
Court's explanation of binding precedent supporting the constitutionality of six-person juries in noncapital cases
Himmelein was convicted of misdemeanor driving while under the influence following a jury trial in Pasco County and sentenced to time served. He was t…
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DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
SHAN LEVI HIMMELEIN, Appellant,
v.
STATE OF FLORIDA, Appellee.
No. 2D2025-0114
September 18, 2026
Appeal from the County Court for Pasco County; Frank I. Grey, Judge.
Blair Allen, Public Defender, and Caroline S. Cassidy, Assistant Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Christopher Manon, Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge.
Shan Levi Himmelein appeals from his judgment and sentence for misdemeanor driving while under the influence. He was convicted following a jury trial, and the trial court sentenced him to time served. We affirm.
Himmelein first argues on appeal that the trial court erred by excluding certain testimony from his treating physician. We find no merit to this argument and comment on it no further.
Himmelein also argues on appeal that the trial court committed fundamental error by allowing him to be tried for a noncapital offense using a six-person jury.1 He maintains that section 913.10, Florida Statutes—which provides that "[t]welve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases"—is unconstitutional on its face. We conclude that Himmelein has failed to demonstrate any error, let alone fundamental error, with regard to this argument. See Serrano-Delgado v. State, 392 So. 3d 251, 253 (Fla. 2d DCA 2024) ("In Williams v. Florida, 399 U.S. 78, 86 (Fla. 1970), the United States Supreme Court held that Florida's use of a six-person jury does not violate the Sixth or Fourteenth Amendment. The Court reasoned that no historical evidence shows that a twelveperson jury was an indispensable component of the Sixth Amendment or that the Framers intended to require a twelve-person jury. Williams is binding precedent and 'indisputably remains good law.' " (citation omitted) (quoting Simpson v. State, 368 So. 3d 513, 520 (Fla. 5th DCA 2023) (Pratt, J., concurring))); see also Jack v. State, 349 So. 3d 925, 927 (Fla. 1st DCA 2022) ("[N]o fundamental error occurred when [a]ppellant was tried and convicted by a six-person jury on noncapital charges."). Affirmed.
ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.
Opinion subject to revision prior to official publication.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. Florida, 399 U.S. 78 (U.S. 1970)
- Hamed Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025)
- Simpson v. State, 368 So. 3d 513 (Fla. 5th DCA 2024)