Petition for Writ of Certiorari — Ian Gray, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

IAN GRAY, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Benjamin Nathaniel Paley

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355–7600

Bpaley@pd15.org

Lmattocks@pd15.org

Appeals@pd15.org

1

APPENDIX A

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

IAN T. GRAY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2024-2251

[November 12, 2025]

CORRECTED OPINION

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Gary M. Farmer, Jr., Judge; L.T. Case No. 21005914CF10A.

Daniel Eisinger, Public Defender, and Benjamin Nathaniel Paley,

Assistant Public Defender, West Palm Beach, for appellant.

James Uthmeier, Attorney General, Tallahassee, and Zi Jin Peter Chan,

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm the defendant’s conviction and sentence. The State concedes

that the trial court improperly assessed the “crimes against a minor” cost

because the victim was not a minor. Therefore, we reverse in part and

remand for trial court to vacate the “crimes against a minor” cost.

Affirmed in part, reversed in part, and remanded with instructions.

KUNTZ, C.J., MAY, J., and EWEN, LILLIAN, Associate Judge, concur.

*

*

*

Not final until disposition of timely-filed motion for rehearing.

APPENDIX B

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401

January 14, 2026

IAN GRAY,

Appellant(s)

CASE NO. - 4D2024-2251

L.T. No. - 21-005914CF10A

v.

STATE OF FLORIDA,

Appellee(s)

BY ORDER OF THE COURT:

ORDERED that Appellant's December 1, 2025 motion for rehearing, written opinion, and

to certify a question of great public importance is denied.

Served:

Crim App WPB Attorney General

Zi Jin Peter Chan

Virginia Jane Murphy

Benjamin Paley

Palm Beach Public Defender

KTH

I HEREBY CERTIFY that the foregoing is a true copy of the court’s order.

4D2024-2251 January 14, 2026

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2024-2251 January 14, 2026

APPENDIX C

strangulation arising out of the same event because they are both

aggravated forms of simple battery.” Id. at 108.

The same analysis used in Ramirez applies here. Just like in

Ramirez, Mr. Gray strangled the ex-girlfriend and attacked her in a

different way (punching). Besides the fact that the defendant in

Ramirez slapped instead of punched the victim, the facts are

otherwise the same. Because domestic battery by strangulation and

felony battery are both “aggravated” forms of simple battery, this

Court should reverse one of Mr. Gray’s convictions. See Whitfield,

202 So. 3d at 458 (“When dual convictions violate double jeopardy,

the proper remedy is to vacate one conviction.”).

II. THE SIXTH AMENDMENT ENTITLED MR. GRAY TO A

TWELVE-PERSON JURY, AND HE DID NOT WAIVE THAT

RIGHT.

a. The standard of review is de novo.

This Court reviews constitutional claims de novo. See A.B. v.

Fla. Dep’t of Child. & Fam. Servs., 901 So. 2d 324, 326 (Fla. 3d DCA

2005) (“The standard of review for the mother’s constitutional claim

is de novo[,] as this issue involves a question of law.”).

14

APPENDIX C

b. This issue is properly brought on appeal because Mr.

Gray did not waive this issue.

Preliminarily, Mr. Gray did not waive appellate review of this

issue, because the trial court did not specifically ask him if he

intended to waive his Sixth Amendment right to a twelve-person jury.

See T. 170; Johnson v. State, 994 So. 2d 960, 963–64 (Fla. 2008).

Instead, the trial court asked Mr. Gray if he felt ok with the jury that

the trial court intended to swear in. T. 270. For that reason, this issue

is proper on appeal.

c. The Sixth Amendment guarantees a defendant a twelveperson jury for all felonies.

Mr. Gray’s conviction by a six-person jury violated his Sixth

Amendment right to a twelve-person jury. See amend. VI, U.S.

Const.; amend. XIV, U.S. Const. 2

Previously, this Court has refused to rule on this issue because

it is bound by Supreme Court precedent. See Guzman v. State, 350

2 The Supreme Court has held that the Sixth Amendment right

to a jury trial applies to the states through the Fourteenth

Amendment’s Due Process Clause. See Duncan v. Louisiana, 391 U.S.

145, 149 (1968) (“Because we believe that trial by jury in criminal

cases is fundamental to the American scheme of justice, we hold that

the Fourteenth Amendment guarantees a right of jury trial in all

criminal cases which—were they to be tried in a federal court—would

come within the Sixth Amendment’s guarantee.”).

15

APPENDIX C

So. 3d 72, 73 (Fla. 4th DCA 2022) (holding that this Court has “no

authority to overrule . . . precedent from the United States Supreme

Court that endorsed the use of a jury with only six members as

constitutional” (quoting Gonzalez v. State, 982 So. 2d 77, 78 (Fla. 2d

DCA 2008))). Nonetheless, Mr. Gray maintains, like Justice Gorsuch,

that “Florida does what the Constitution forbids.” See Cunningham v.

Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J., dissenting from

the denial of certiorari).

Further, Mr. Gray maintains that the Supreme Court has

proven that it can overturn precedent when warranted. See, e.g., Roe

v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215 (2022). Indeed, the Court will

overturn precedent when that precedent is “irreconcilable with not

just one, but two[] strands of constitutional precedent well

established both before and after the decision.” Ramos v. Louisiana,

590 U.S. 83, 112 (2020) (Sotomayor, J., concurring). “Moreover, ‘[t]he

force of stare decisis is at its nadir in cases concerning [criminal]

procedur[e]

rules

that

implicate

fundamental

constitutional

protections.’” Id. at 113 (alterations in original) (quoting Alleyne v.

16

APPENDIX C

United States, 570 U.S. 99, 116 n.5 (2013)). As such, Mr. Gray

continues to raise this good-faith argument for a change in the law.

Here, Williams is ripe for being overturned as precedent because

it is irreconcilable with decades of Court case law. Both the Florida

and United States Constitutions protect the right to a jury trial in

criminal cases. See amend. VI, U.S. Const. (“In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime

shall have been committed . . . .”); art. I, § 22, Fla. Const. (“The right

of trial by jury shall be secure to all and remain inviolate. The

qualifications and the number of jurors, not fewer than six, shall be

fixed by law.”). Since antiquity, and contrary to Florida law, the right

to a trial by jury has meant a jury consisting of twelve people. 3 See

3 Thus, the prevalent use of twelve-person juries is not, as the

Supreme Court held, an “historical accident.” Contra Williams v.

Florida, 399 U.S. 78, 89–90 (1970). See also Gibson v. State, 16 Fla.

291, 300 (1877) (holding that historically, the right to a jury trial

meant “a jury, according to the common law, to be composed of

twelve persons”); Robert H. Miller, Comment, Six of One Is Not a

Dozen of the Other: A Reexamination of Williams v. Florida and the

Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 633 (1998)

(discussing twelve-member juries in ancient Greek and Roman trials

(myth and real)); 4 W. Blackstone, Commentaries on the Laws of

England 343 (1769) (stating that juries consisting of twelve people

were commonplace in the English common law).

17

APPENDIX C

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J., dissenting

from the denial of certiorari) (“For almost all of this Nation’s history[,]

and centuries before that, the right to [a] trial by jury for serious

criminal offenses meant the right to a trial before [twelve] members

of the community.”). “Acutely concerned with individuals and their

liberty, the [F]ramers of our Constitution sought to preserve th[e]

right [to a twelve-person jury] for future generations.” Cunningham,

144 S. Ct. at 1287 (Gorsuch, J., dissenting from the denial of

certiorari). “Yet today, a small number of States refuse to honor [that]

promise.” Id.

Florida is one of those states. In 1875, Florida amended its

constitution to allow its legislature to legalize juries with less than

twelve people, in direct contravention of the common law tradition

Interestingly, the number twelve was chosen for its religious

significance. See 1 Edward Coke, The First Part of the Institutes of the

Lawes of England 155 (photo. reprint 1979) (1628) (“And that

number of twelve is much respected in holy Writ, as [twelve] apostles,

[twelve] stones, [twelve] tribes, etc.”); John Proffatt, Trial by Jury 112

n.4 (San Francisco, Sumner Whitney & Co. 1877) (“[T]his number is

no less esteemed by our own law than by holy writ. If the twelve

apostles on their twelve thrones must try us in our eternal state, good

reason hath the law to appoint the number twelve to try us in our

temporal.”).

18

APPENDIX C

predating

the

Magna

Carta.

See

Gibson,

16

Fla.

at

300

(acknowledging that historically the right to a jury trial meant “a jury,

according to the common law, to be composed of twelve persons”);

see also id. (“The number of jurors for the trial of causes in any court

may be fixed by law.”). The Florida Legislature did so in 1877,

enacting chapter 3010, which provided: “[t]welve men shall

constitute a jury to try all capital cases, and six men shall constitute

a jury to try all other offenses prosecuted by indictment.” Ch. 3010,

§ 6, at 54, Laws of Fla. (1877) (codified at § 913.10, Fla. Stat.). This

was, and still is, in direct violation of the Sixth Amendment.

Interestingly, when the Supreme Court gave Florida approval to

continue its draconian practice of using juries with less than twelve

people in felony trials, the Court used a mode of constitutional

interpretation that contravenes the original meaning of the Sixth

Amendment: a functionalist approach. See Williams, 399 U.S. at 98–

103. Specifically, in Williams, the Court reasoned that it could find

“no indication in ‘the intent of the Framers’ of an explicit decision to

equate the constitutional and common-law characteristics of the

jury.” Id. at 99. According to the Court, “[t]he relevant inquiry . . .

must be the function that the particular feature performs and its

19

APPENDIX C

relation to the purposes of the jury trial.” Id. at 99–100. “Measured

by th[at] standard,” the Court held, “the [twelve-person jury]

requirement [for felony trials] cannot be regarded as an indispensable

component of the Sixth Amendment,” because “neither currently

available evidence nor theory suggests that the [twelve-person] jury

is necessarily more advantageous to the defendant than a jury

composed of fewer members.” Id. at 100–02 (footnotes omitted).

Continuing down this dark road of functionalism, the Court

decided Apodaca v. Oregon, 406 U.S. 404 (1972). There, the Court

held that nonunanimous jury verdicts in state criminal trials

comported with the Sixth Amendment. Id. at 406. “Justice White,

writing for the plurality, applied a Williams-style inquiry focusing

upon ‘the function served by the jury in contemporary society’ and

concluded

that

the

requirement

of

unanimity

was

not

‘of

constitutional stature.’” Guzman, 350 So. 3d at 73, 76 (Gross, J.,

concurring specially) (quoting Apodaca, 406 U.S. at 406, 410).

But then, in Ramos, the tide changed: the light of originalism

began to peak out from the darkness of functionalism. The Supreme

Court held that the Sixth Amendment’s “trial by an impartial jury”

requirement encompasses what the term “meant at the time of the

20

APPENDIX C

Sixth Amendment’s adoption.” Ramos, 590 U.S. at 90. The Court

wrote that the functionalist analysis relied on in Apodaca was flawed,

and held that a nonunanimous jury verdict did not comport with the

Sixth Amendment’s guarantees. Id. at 93, 100, 106 (2020).

Judge Gross, in a special concurrence in Guzman, noted that

although the Supreme Court never explicitly questioned the Williams

decision in Ramos, the Court’s functionalist reasoning in Williams is

on shaky ground because of the Court’s decision in Ramos. See

Guzman, 350 So. 3d at 78 Gross, J., concurring specially) (“It is a

stretch to say that Ramos ‘effectively overruled’ Williams. Yet, if

applied to the issue of jury size, the originalist analysis in Ramos

would undercut Williams’s functionalist underpinnings.”).

Mr. Gray acknowledges that the Supreme Court recently denied

review of the same twelve-person jury argument in Albritton (No. 237272), Croce (No. 23-7503), Rodgers (23-7521), Mendezsales (237588), Davis (23-7685), Mantecon (24-5113), Terrell (24-5284), and

Valle (24-5431). Nonetheless, Mr. Gray maintains that the Court’s

ruling in Williams is impossible to square with the Court’s ruling in

Ramos.

21

APPENDIX C

d. Because the Sixth Amendment entitled Mr. Gray to a

twelve-person jury, section 913.10 is unconstitutional

because it allows for six-person juries in felony trials.

Because Williams was wrongly decided, section 913.10 (which

legislatively permits juries of less than twelve people in felony trials)

is facially unconstitutional.

“As in all constitutional challenges, [a] statute comes to [this]

Court clothed with the presumption of correctness and all reasonable

doubts about [a] statute’s validity must be resolved in favor of

constitutionality.” City of Fort Lauderdale v. Dhar, 185 So. 3d 1232,

1234 (Fla. 2016). “[T]o overcome the presumption of constitutionality,

‘the invalidity must appear beyond reasonable doubt.’” Planned

Parenthood of Sw. & Cent. Fla. v. State, 384 So. 3d 67, 77 (Fla. 2024)

(quoting Franklin v. State, 887 So. 2d 1063, 1073 (Fla. 2004)).

“When courts consider the constitutionality of a statute that

abridges a fundamental right, they are required to apply a strict

scrutiny standard to determine whether the statute denies equal

protection.” Dhar, 185 So. 3d at 1234. “A fundamental right is one

[that] has its source in and is explicitly guaranteed by the federal or

Florida Constitution.” State v. J.P., 907 So. 2d 1101, 1109 (Fla.

2004). So “[t]o withstand strict scrutiny, a law must be necessary to

22

APPENDIX C

promote a compelling governmental interest and must be narrowly

tailored to advance that interest.” Jackson v. State, 137 So. 3d 470,

474 (Fla. 4th DCA 2014).

To “abridge” a fundamental right, a government has to “reduce”

or “diminish” said right. See Abridge, Black’s Law Dictionary (12th

ed. 2024). This indicates that to abridge a fundamental right, a law

must limit a person’s ability to exercise their constitutional rights.

This does not mean, however, that a government can gut that

fundamental right. In fact, the only way for a government to gut a

fundamental right, according to an originalist interpretation of the

Constitution, is through a constitutional amendment, which was not

done here. See art. V, U.S. Const.; Antonin Scalia, The Essential

Scalia: On the Constitution, the Courts, and the Rule of Law 12 (Jeffrey

S. Sutton & Edward Whelan eds., 2020) (“Originalists believe that the

provisions of the Constitution have a fixed meaning, which does not

change (except by constitutional amendment): they mean today what

they meant when they were adopted, nothing more and nothing

less.”). Here, Mr. Gray suggests that section 913.10 will never survive

strict scrutiny, because section 913.10 does not merely abridge his

23

APPENDIX C

Sixth Amendment right to a twelve-person jury in a felony trial, it

guts that fundamental right entirely.

Nonetheless, even if this Court were to apply strict scrutiny,

section 913.10 still fails because there is no compelling government

interest. The history behind section 913.10 shows that Florida did

not, and still does not, have a compelling government interest in

limiting a defendant’s Sixth Amendment right to a twelve-person jury

in a felony trial, because Florida’s reasoning for passing section

913.10 was racist to its very core. See Wallace v. State, 768 So. 2d

1247, 1250 (Fla. 1st DCA 2000) (“[R]acism has no place in our system

of justice.”).

Florida’s six-person jury law arose in the Jim Crow era context

of a “deliberate and systematic effort to suppress minority voices in

public affairs.” Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting

from the denial of certiorari). Although this is never explicitly stated

by the Florida Legislature, historical evidence points in that direction.

Namely, during Reconstruction, when federal troops were stationed

in Florida, a jury trial in a felony case consisted of twelve people. But

approximately one month after federal troops left (at the birth of the

Jim Crow era), Florida changed its laws, permitting a six-person jury

24

APPENDIX C

to hear and decide a felony case. See ch. 3010, § 6, at 54, Laws of

Fla. (1877). Thus, the six-person jury first saw light at the birth of

the Jim Crow era as former Confederates regained power in southern

states and state prosecutors made a concerted effort to prevent black

peoples from serving as jurors. 4

Because there is no compelling government interest to

promoting racism, section 913.10 fails to meet strict scrutiny, and it

is facially unconstitutional.

This Court should reverse Mr. Gray’s convictions by a sixperson jury.

III. FLORIDA’S HFO AND PRR STATUTES VIOLATE MR.

GRAY’S SIXTH AMENDMENT RIGHT TO A TRIAL BY

JURY.

a. The standard of review is de novo.

This Court reviews constitutional claims de novo. A.B., 901 So.

2d at 326.

In the aftermath of the 1876 presidential election,

Reconstruction ended and federal troops withdrew from the South.

Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The

History of Florida 260, 273 (Michael Gannon ed., 2018). After

January 1877, no federal troops remained in Florida. Id.

4

25

APPENDIX C

b. This issue is properly preserved by a Rule 3.800(b)(2)

motion.

[E]ven if [an issue was] not originally preserved, “to provide

defendants with a mechanism to correct sentencing errors

in the trial court at the earliest opportunity” and to “give

defendants a means to preserve these errors for appellate

review,” [the Florida Supreme Court] amended Florida

Rule of Criminal Procedure 3.800(b) to allow defendants to

file a motion to correct sentencing error even while an

appeal is pending (but before the initial brief).

Brooks v. State, 969 So. 2d 238, 241–42 (Fla. 2007) (quoting .

Mr. Gray’s HFO and PRR argument is preserved for appeal since

it is a sentencing error that can be corrected through a Rule

3.800(b)(2) motion. Sentencing errors are errors that are “apparent

in orders entered as a result of the sentencing process.” Jackson v.

State, 983 So. 2d 562, 572 (Fla. 2008) (citation omitted).

Here, Mr. Gray’s HFO and PRR argument addresses an issue in

the sentencing order itself (i.e., the fact that the trial court explicitly

found Mr. Martin to be an HFO in the sentencing order). Thus, Mr.

Gray’s status as an HFO and a PRR is a sentencing error that was

properly preserved for appeal through a Rule 3.800(b)(2) motion to

correct a sentencing error.

Mr. Gray acknowledges that Luton v. State, 934 So. 2d 7 (Fla.

3d DCA 2006), goes against his argument on appeal. Luton, however,

26

APPENDIX C

is a Third District case, which this Court is not bound by. See Point

Conversions, LLC v. WPB Hotel Partners, LLC, 324 So. 3d 947, 960

(Fla. 4th DCA 2021) (“[W]e are not bound by a sister appellate court’s

decision, just as we are not controlled by a federal district court’s

decision. That said, however, we are bound by the United States

Supreme Court’s decisions, and as a result we are obligated to follow

them.” (citations omitted)). Thus, this Court should not rely on Luton.

Instead, this Court should rely on Hollingsworth v. State, 293

So. 3d 1049 (Fla. 4th DCA 2020). In Hollingsworth, this Court held

that a Rule 3.800(b)(2) motion “was the proper method to raise the

issue” of a trial court making findings that should be made by a jury.

Id. at 1051. Because Mr. Gray’s argument is that the trial court erred

when it made the finding that Mr. Gray could be sentenced as an

HFO, instead of a jury making that finding, Mr. Gray could raise it

for the first time in a Rule 3.800(b)(2) motion, and he did not need to

first raise it at or before sentencing.

c. Erlinger requires a jury to make any finding that would

result in a sentence enhancement.

In Erlinger v. United States, 602 U.S. 821 (2024), the Supreme

Court reiterated that a defendant was entitled, under the Fifth and

27

APPENDIX C

Sixth Amendments, to have a jury determine beyond a reasonable

doubt a fact that would result in a sentence enhancement. Id. at 834–

35. The Court emphasized that “[t]he Fifth and Sixth Amendments

placed the jury at the heart of our criminal justice system.” Id. at 831.

Thus, any fact that “increase[s] the prescribed range of penalties to

which a criminal defendant is exposed,” id. at 834 (alteration in

original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))

“must be resolved by a unanimous jury beyond a reasonable doubt

(or freely admitted in a guilty plea),” id.

d. Erlinger applies to Florida’s HFO and PRR statutes.

Although there is binding state case law that states a trial court

can find that a prior conviction occurred on a specific date, see Chapa

v. State, 159 So. 3d 361, 362 (Fla. 4th DCA 2015), that controlling

state case law is wrong under Erlinger. Specifically, the Supreme

Court in Erlinger emphasized that a trial court “may ‘do no more,

consistent with the Sixth Amendment, than determine what crime,

with what elements, the defendant was convicted of.’ ” 602 U.S. at

838 (quoting Mathis v. United States, 579 U.S. 500, 511–12 (2016)).

Thus, the date a prior conviction was entered must be found, under

Erlinger, by a jury (even if state case law contradicts the Court). See

28

APPENDIX C

Point Conversions, LLC, 324 So. 3d at 960 (“[W]e are not bound by a

sister appellate court’s decision, just as we are not controlled by a

federal district court’s decision. That said, however, we are bound by

the United States Supreme Court’s decisions, and as a result we are

obligated to follow them.” (citations omitted)).

e. Because Erlinger applies to Florida’s HFO statute, the

trial court was required to have a jury make the requisite

factual findings for Mr. Gray to be sentenced as an HFO.

Under Florida law, a trial court may sentence a defendant to an

extended sentence of imprisonment if it finds the defendant is an

HFO, and a trial court must sentence that defendant to a mandatory

minimum if it finds that the defendant is a PRR. §§ 775.084(1), (3)(a)

; 775.082(9)(a)1., Fla. Stat. (2020) . To make either finding, a trial

court has to make certain factual findings by a preponderance of the

evidence. §§ 775.084(1), (3)(a); 775.082(9)(a)1., Fla. Stat. (2020).

Sections 775.082 and 775.084 violates Mr. Gray’s rights under

the Fifth and Sixth Amendments. By continuing to allow a trial court,

instead of a jury, to make the requisite factual findings that a

defendant is an HFO (for the purpose of an enhanced sentence range)

and a PRR (for the purpose of imposing the mandatory minimum),

sections 775.082 and 775.084 violate Mr. Gray’s rights under the

29

APPENDIX C

Fifth and Sixth Amendments.

f. The trial court’s error is not harmless.

During the pendency of this appeal, this Court issued its

opinion in Jackson v. State, No. 4D2024-0819, 2025 WL 1119094

(Fla. 4th DCA Apr. 16, 2025). In Jackson, this Court held “that any

error in failing to submit sentence enhancement questions to a jury

is subject to harmless error review.” Id. at *6. This Court then stated

that the harmless error test asks “‘whether the record demonstrates

beyond a reasonable doubt that a rational jury would have found’

that appellant qualified as an HFO.” Id. “Although the harmless error

test applies to both constitutional errors and errors not based on

constitutional grounds, ‘the harmless error test is to be rigorously

applied,’ and the State bears an extremely heavy burden in cases

involving constitutional error.” Hurst v. State, 202 So. 3d 40, 68 (Fla.

2016) (citation omitted)).

Here, the trial court’s error is not harmless, because the record

does not demonstrate beyond a reasonable doubt that a jury would

have found that Mr. Gray could be sentenced as an HFO and a PRR.

At sentencing, the trial court did not go through any kind of analysis

of the prior convictions to ensure that Mr. Gray would qualify for HFO

30

APPENDIX C

and PRR statuses. That was insufficient. Thus, because Erlinger

applies and a jury should have made the required findings for Mr.

Gray to be sentenced as an HFO and a PRR, this Court should reverse

Mr. Gray’s conviction and sentence.

IV. THE TRIAL COURT ERRED WHEN IT IMPOSED A

CRIME AGAINST MINOR COST, AS THE VICTIM WAS NOT

A MINOR.

a. This Court’s standard of review is de novo.

This Court “review[s] a trial court’s order assessing costs for an

abuse of discretion.” Taylor v. State, 352 So. 3d 346, 348 (Fla. 4th

DCA 2022). “This [C]ourt reviews a motion to correct a sentencing

error de novo.” Id. (quoting Guadagno v. State, 291 So. 3d 962, 962

(Fla. 4th DCA 2020)).

b. This issue was preserved by Mr. Gray raising it in a

timely motion to correct sentencing errors.

This issue is preserved for appeal because Mr. Gray raised it in

a timely motion to correct sentencing error, which the trial court

denied when it did not rule on Mr. Gray’s motion to correct

sentencing errors within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B)

(“[I]f the trial court does not file an order ruling on the motion within

60 days, the motion shall be deemed denied.”); Jackson, 983 So. 2d

at 568 (holding that sentencing issues raised in a motion to correct

31