HIMMELEIN v. STATE (2026)

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[, 90 S.Ct. 1893, 26 L.Ed.2d 446] ([U.S.]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 twelve-person 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.

FOOTNOTES

1.   The United States Supreme Court has recently granted a petition for writ of certiorari to review this issue in Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025) (table decision), cert. granted, No. 25-6623, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2026 WL 1718018 (U.S. June 15, 2026).

SLEET, Judge.

ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.