SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2025-0883
Lower Tribunal No. 2023-CF-005235
JORDAN OMARVIUS ROGERS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Appeal from the Circuit Court for Polk County.
Mark F. Carpanini, Judge.
June 29, 2026
ON MOTION FOR SUPPLEMENTAL BRIEFING
KAMOUTSAS, J.
Since 1877, Florida has permitted trial by six-person juries in non-capital
cases. Ch. 3010 § 6, Laws of Fla. (1877) (§ 6); see also Laws of Fla. (1939); Art. 1,
§ 22, Fla. Const. (1968). Over fifty years ago, in Williams v. Florida, 399 U.S. 78,
103 (1970), the United States Supreme Court considered the constitutionality of
Florida’s jury size and concluded that “[the] petitioner’s Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by
Florida’s decision to provide a six-man rather than a 12-man jury.”
Recently, the United States Supreme Court granted a petition for a writ of
certiorari in Kian v. Florida, No. 25-6623, 2026 WL 1718018, at *1 (U.S. June 15,
2026), that requested the Court reconsider its holding in Williams. The petitioner in
Kian specifically asked whether he “was de[p]rived of his right, under the Sixth and
Fourteenth Amendments, to a trial by a 12-person jury when the defendant is charged
with a serious felony?” Petition for Writ of Certiorari at ii, Kian v. Florida, No. 25-6623 (U.S. Jan. 9, 2026).
In light of the United States Supreme Court’s action, Appellant filed a motion
for supplemental briefing in this case asking this Court to allow Appellant to brief
and argue that the six-person jury in Appellant’s non-capital felony case violated his
right under the Sixth Amendment to a trial by a 12-person jury. Appellant concedes
this issue was not raised at trial nor in his initial brief but asserts preservation in the
trial court was not necessary since this error was fundamental and “a challenge to
the facial constitutionality of a statute may be raised for the first time on appeal.”
For the reasons that follow, we deny Appellant’s motion for supplemental briefing.
As an initial matter, Appellant is correct that a challenge to the facial
constitutionality of a statute can be raised for the first time on appeal. See N.B. v.
Fla. Dep’t Child. & Fams., 183 So. 3d 1186, 1187 (Fla. 3d DCA 2016). But here,
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Appellant not only failed to raise the issue of the number of jurors below but also
did not raise the issue in his initial brief, much less argue that the issue constituted a
fundamental error. Issues not raised in the initial brief are waived or abandoned. See,
e.g., Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (citing Hall v. State,
823 So. 2d 757, 763 (Fla. 2002)); City of Miami v. Steckloff, 111 So. 2d 446, 447
(Fla. 1959); Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“[T]he defendant
did not raise a claim of fundamental error relating to this issue in his initial brief;
therefore, this court is not required to undertake a fundamental error analysis.”).
Additionally, Florida Rule of Appellate Procedure 9.210(a) establishes that
“[u]nless otherwise ordered by the court, the only briefs permitted to be filed by the
parties in any 1 proceeding are the initial brief, the answer brief, and a reply brief.”
Cf. Fla. R. App. P. 9.140(g)(2)(A) (“Anders Briefs . . . Upon the discovery of an
arguable issue, other than an unpreserved sentencing, disposition, or commitment
order error, the court must order briefing on the issues identified by the court.”);
State v. Causey, 503 So. 2d 321, 323 (Fla. 1987) (holding that in the context of
Anders briefs, a reviewing court should permit both parties to submit briefs on issues
that the appellate court independently determines to have merit). Accordingly, aside
from Anders 1 appeals, parties will generally have one opportunity to brief, answer
and reply. Supplemental briefing is the exception—not the rule.
1
Anders v. California, 386 U.S. 738 (1967).
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Certainly, a district court of appeal may exercise its discretion to permit or
require supplemental briefing. R & B Holding Co., Inc. v. Christopher Advert. Grp.,
Inc., 994 So. 2d 329, 334 (Fla. 3d DCA 2008) (Cope, J., concurring in part and
dissenting in part) (discussing that appellate courts have discretion to allow parties
to file supplemental briefs on new issues or to order supplemental briefs sua sponte).
For example, supplemental briefing may be appropriate where there is a material
issue that was not briefed but is still necessary for the court to consider in order to
resolve the issues raised on appeal, such as a possible basis for tipsy coachman
affirmance, or if there has arisen an intervening persuasive or authoritative decision
that could impact the court’s analysis of an issue raised by the appellant in the initial
brief. 2 See, e.g., Toby v. State, 29 So. 3d 1138, 1138 (Fla. 1st DCA 2009); Ortiz v.
State, 905 So. 2d 1016, 1017 (Fla. 2d DCA 2005). However, in any case, the decision
to permit or require supplemental briefing is solely within a court’s discretion.
Here, Appellant seeks permission to file a supplemental brief to raise a new
issue not raised in his initial brief based on the United States Supreme Court’s grant
of a petition for certiorari to recognize a basis for appeal that is not meritorious under
current controlling federal or Florida law. However, claims based on a higher court’s
2
We bear in mind the limitations of the tipsy coachman doctrine where appellate courts are permitted to affirm a lower court’s order even if based on an erroneous rationale, so long as the affirmance is otherwise supported by the record. Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002).
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granting certiorari review of a case that may potentially change the governing law
are speculative and premature. The parties involved do not know the outcome of
Kian nor the ramifications. Indeed, even assuming, arguendo, that the United States
Supreme Court concludes that Florida’s six-person jury system is unconstitutional,
questions regarding the applicability of harmless error versus structural error remain.
See generally Neder v. United States, 527 U.S. 1, 8-15 (1999) (discussing harmless
error versus structural error and acknowledging that “most constitutional errors can
be harmless”); Wilson v. State, 764 So. 2d 813, 817-18 (Fla. 4th DCA 2000)
(discussing that trial errors occur “during the presentation of the case to the jury,”
and are amenable to a harmless-error analysis, while structural errors “deprive
defendants of ‘basic protections’” and “infect the entire trial process” requiring
automatic reversal).
Further, if a new rule of law is announced after this appeal becomes final, the
question of retroactivity must be resolved. See generally Dettle v. State, 395 So. 3d
1054, 1057 (Fla. 2024) (“‘[N]ew rules of law announced by this Court or the United
States Supreme Court generally apply to all cases that are pending on direct review
or are otherwise not final’—they do not, normally, apply retroactively. . . . There
are, however, exceptions.” (quoting White v. State, 214 So. 3d 541, 549 (Fla. 2017))).
In that instance, Appellant could seek post-conviction relief to the same extent as
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any other person convicted of a felony by a six-person jury prior to the issuance of
the decision.
The current and binding precedent of Williams, the uncertainty of any change
in controlling law and the applicability of any such change to Appellant’s case,
coupled with Appellant’s failure to raise this issue below or in his initial brief,
weighs against this Court’s exercising its discretion to permit supplemental briefing.
Accordingly, Appellant’s motion for supplemental briefing is denied.
DENIED.
STARGEL and MIZE, JJ., concur.
Blair Allen, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Christopher Manon, Assistant Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
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