Gregory J. Lee v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

GREGORY J. LEE, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D2022-1806

[March 13, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Elizabeth Anne Scherer, Judge; L.T. Case No. 20010309CF10A.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Gregory J. Lee (“Defendant”) timely appeals his conviction for aggravated assault with a deadly weapon. Defendant argues the trial court improperly denied his motion for acquittal and improperly sustained the State’s objection based on speculation. We reject both arguments without discussion. We also reject Defendant’s argument that being convicted by a six-person jury was unconstitutional and deny Defendant’s request to certify a question of great public importance. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022).

Finally, we reject Defendant’s argument that a jury, not the trial court, must make a factual finding that Defendant committed his offense within three years of his release from prison for purposes of classifying him as a Habitual Violent Felony Offender and a Prison Release Reoffender. See generally Chapa v. State, 159 So. 3d 361, 362 (Fla. 4th DCA 2015); Luton v. State, 934 So. 2d 7, 9-10 (Fla. 3d DCA 2006). We also deny Defendant’s request for a stay pending the U.S. Supreme Court’s decision in Erlinger v. United States, No. 23-370 (cert. granted Nov. 20, 2023). However, we

acknowledge that Defendant has argued the Court’s decision in Erlinger could be dispositive in the instant case.

Affirmed. MAY, FORST and KUNTZ, JJ., concur.

• • * * Not final until disposition of timely filed motion for rehearing.