Background
Shan Levi Himmelein was convicted by a jury of misdemeanor driving while under the influence in Pasco County Court. The trial court sentenced him to time served.
On appeal, Himmelein challenged the exclusion of certain testimony from his treating physician. He also argued that it was fundamental error to try his noncapital offense before a six-person jury, contending that section 913.10, Florida Statutes, is facially unconstitutional.
The Court’s Holding
The Second District affirmed. It found no merit in Himmelein’s challenge to the exclusion of his treating physician’s testimony and declined further discussion of that issue.
The court also held that Himmelein had not shown error—much less fundamental error—from the use of a six-person jury. Relying on Williams v. Florida and its own prior precedent, the court concluded that Florida’s use of six-person juries in noncapital criminal cases does not violate the Sixth or Fourteenth Amendment.
Key Takeaways
- A six-person jury may constitutionally try a noncapital criminal case in Florida under controlling precedent.
- The court rejected the claim that use of a six-person jury was fundamental error.
- The misdemeanor DUI conviction and time-served sentence remain in place.
Why It Matters
The decision follows Florida appellate authority treating Williams v. Florida as binding on challenges to six-person juries in noncapital prosecutions. The court noted that the U.S. Supreme Court has granted certiorari in a separate Florida case addressing the issue, but that development did not change the controlling law applied here.