Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT TRANQUILINO GONZALES, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D2025-2161 [August 26, 2026] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Daliah Handel Weiss, Judge; L.T. Case No. 502021CF009132AXXXMB. Daniel Eisinger, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant. James Uthmeier, Attorney General, Tallahassee, and Mary Elizabeth Johnson, Assistant Attorney General, West Palm Beach, for appellee. GERBER, C.J. The defendant appeals from his conviction and sentence for sexual battery with penetration after a six-person jury trial. The defendant argues the circuit court fundamentally erred in two respects by: (1) declining to answer the jury’s question regarding the defendant’s possible sentence if convicted; and (2) not providing the defendant with a twelve-person jury. On the first argument, we affirm. See Fla. R. Crim. P. 3.390(a) (“Except in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial.”; Knight v. State, 668 So. 2d 596, 597 (Fla. 1996) (“We have construed [rule 3.390(a)] to mean that as to offenses in which the jury plays no role in sentencing, the jury will not be advised of the possible penalties.”). On the second argument, we affirm. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), rev. denied, No. SC22-1597, 2023 WL 3830251 (Fla. June 6, 2023); Cunningham v. Florida, 144 S. Ct. 1287 (2024) (denying petition for writ of certiorari challenging Florida’s use of six- member juries). But see Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025), cert. granted, No. SC25-6623, 2026 WL 1718018 (June 15, 2026). Affirmed. MAY and SHAW, JJ., concur. * * * Not final until disposition of timely-filed motion for rehearing. 2