## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 20 23

- 0 0 14

_____________________________

K HALID H YAT C HAUDHRY ,
Appellant,

v.

S TATE OF F LORIDA ,
Appelle e

.

_____________________________

On appeal from the Circuit Court for Bay County

. Shonna Young Gay , Judge

.
January 31, 2024

P ER C URIAM

.

A FFIRMED

. See D ettle v. State , 334 So. 3d 346, 346

– 47 (Fla. 1st DCA 2021), rev. granted , SC22

- 417, 2022 WL 3656814 (Fla. Aug. 25, 2022).

B.L. T HOMAS and R OWE , JJ., concur ; B ILBREY , J., concurs with opinion

.2 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

B ILBREY , J., concurring

.

A t trial on the third amended information, A ppellant was convicted of three counts of unlawful se xual activity “with a person 16 o r 17 years of age” by “[a] person 24 years of age or older.” § 794.05(1), Fla. Stat. (2013). We affirmed his conviction and sentence on direct appeal. Chaudhry v. State , 236 So. 3d 1010 (Fla. 1st DCA 2017). Appellant th en filed a motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure, raising twelve grounds. Almost a year later, Appellant’s new postconviction counsel filed an amended motion for postconviction relief raising sixteen ground s

. Appellant challenges the denial of his amended motion for postconviction relief.

The third amended information alleged identical dates, venue, acts, and the same victim for all three counts of unlawful sexual activity. Appellant claims a double jeo pardy violation since the three counts are identical in the third amended information. See Lee v. State , 258 So. 3d 1297 , 1303

– 04 (Fla. 2018); Amison v. State

, 332 So. 3d 593, 598 (Fla. 1st DCA 2022). A double jeopardy violation is fundamental error that may be raised for the first time in a postconviction motion. Smith v. State , 741 So. 2d 576, 577 (Fla. 1st DCA 1999). Nonetheless, Appellant is not entitled to relief.

In Dettle v. State , 334 So. 3d 346, 346

– 47 (Fla. 1st DCA 2021),

rev. granted , SC22

- 417, 2022 WL 3656814 (Fla. Aug. 25, 2022), we held that “ Lee does not apply retroactively to cases such as Appellant’s that were already final when Lee was decided .” In Dettle w e cited State v. Glenn , 558 So. 2d 4 (Fla. 1990), and Witt v. State , 387 So. 2d 922 (Fla. 1980), in denying retroactive application
to Lee

. The Florida Supreme Court in Glenn had stated, “that only major constitutional changes of law which constitute a development of fundamental significance are cognizable under a3 motion for postconviction relief.” 558 So. 2d at 6. We then granted Dettle’s motion for certification and certif ied a question of great

p ublic importance to the Florida Supreme Court. Dettle , 334 So. 3d at 347.

Here, since Appellant’s direct appeal was final before Lee was decided, then relying on Dettle , we are correct to conclude that Lee is not retroactive an d to affirm.

_____________________________

W. Charles Fletcher of Law Office of W. Charles Fletcher, Jacksonville

, for Appellant.

Ashley Moody, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee

, for Appell ee

.