FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Highlands County; Peter F. Estrada, Judge.
Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes,
Assistant Attorney General, Tampa, for Appellee.
Marshall appeals the order denying his motion seeking to
vacate his sentence under Florida Rule of Criminal Procedure
3.850(b)(2), which provides an exception to the two-year time
limit for filing a postconviction motion on the ground that a
newly-established constitutional right has been held to apply
retroactively. We reverse and remand for resentencing.
motion, Marshall argued that his concurrent sentences of
ninety-nine years' imprisonment for breaking and entering
and robbery, which were imposed in 1976, are de facto life
sentences that are unconstitutional under Graham v.
Florida, 560 U.S. 48 (2010), as interpreted by our
supreme court in Henry v. State, 175 So.3d 675, 680
(Fla. 2015) (holding that Graham prohibits
sentencing juvenile nonhomicide offenders to sentences that
ensure their imprisonment without a meaningful opportunity
for release based on demonstrated maturity and
rehabilitation), and Gridine v. State, 175 So.3d
672, 673 (Fla. 2015) (holding that a juvenile nonhomicide
offender's sentence of seventy years' imprisonment is
unconstitutional under Graham for the reasons
explained in Henry). Marshall asserted that he was
entitled to be resentenced under chapter 2014-220, Laws of
Florida, as codified in sections 775.082, 921.1401, and
921.1402, Florida Statutes (2014). See Horsley v.
State, 160 So.3d 393, 408-09 (Fla. 2015) (holding that a
juvenile whose sentence is unconstitutional under the Eighth
Amendment is entitled to be resentenced under chapter
2014-220, Laws of Florida).
the State filed a response, Marshall filed a motion asking
that the postconviction court hold his case in abeyance
pending the supreme court's review of Atwell v.
State, 128 So.3d 167 (Fla. 4th DCA 2013). The
postconviction court declined to do so. The court then denied
Marshall's motion, finding that his sentence was not
unconstitutional under Graham because he is
statutorily entitled to parole consideration.
supreme court has now clarified that a juvenile's
eligibility for parole does not remove his sentence from the
purview of Graham and Miller v. Alabama,
132 S.Ct. 2455 (2012). Atwell v. State, 197 So.3d
1040, 1049 (Fla. 2016). In Atwell, the court quashed
the Fourth District's opinion holding that
Miller was inapplicable to a juvenile's life
sentence with parole eligibility. Id. at 1042. The
court concluded "that Florida's existing parole
system, as set forth by statute, does not provide for
individualized consideration of Atwell's juvenile status
at the time of the murder, as required by Miller,
and that his sentence, which is virtually indistinguishable
from a sentence of life without parole, is therefore
unconstitutional." Id. at 1041. The court held
that juveniles sentenced to life with the possibility of
parole are entitled to resentencing in conformance with
chapter 2014-220, Laws of Florida. Id. at 1050
(citing Horsley, 160 So.3d at 399). While Atwell was
convicted of murder, a homicide offense to which
Miller is applicable, the supreme court noted that
Atwell's life sentence for armed robbery was clearly
unconstitutional under Graham, which is applicable
to nonhomicide offenses. Id. at 1043 n.1 (declining
to address Atwell's sentence for armed robbery because he
had not challenged it in the trial court).
case presents yet another wrinkle in juvenile
sentencing-whether a juvenile's sentence to a term of
years with parole eligibility can violate the Eighth
Amendment. Although the supreme court has not squarely
addressed this issue, we believe that an affirmative answer
flows logically from the court's decisions in
Henry and Atwell. It is clear under
Henry that Marshall's ninety-nine-year sentence
is unconstitutional. The supreme court found that Henry's
sentence of ninety years' imprisonment was
unconstitutional under Graham:
[W]e believe that the Graham Court had no intention
of limiting its new categorical rule to sentences denominated
under the exclusive term of "life in prison."
Instead, we have determined that Graham applies to
ensure that juvenile nonhomicide offenders will not be
sentenced to terms of imprisonment without affording them a
meaningful opportunity for early release based on a
demonstration of maturity and rehabilitation.
175 So.3d at 680 (citing Graham, 560 U.S. at 75);
see Kelsey v. State, 206 So.3d 5, 10 (Fla. 2016)
(noting that the supreme court has declined to require that
term-of-years sentences be de facto life sentences for
Graham to apply). The Henry court concluded
"that the Eighth Amendment will not tolerate prison
sentences that lack a review mechanism for evaluating this
special class of offenders for demonstrable maturity and
reform in the future . . . ." 175 So.3d at 680. In
Atwell, the supreme court explained that
Florida's parole system was not the appropriate review
mechanism for juvenile offenders because it "entirely
fails to recognize" "how children are different,
" 197 So.3d at 1042 (quoting Miller, 132 S.Ct.
at 2469), and it fails to consider "the diminished
culpability of youth at the time of the offense . . ., "
id. at 1047. The court noted that after
Graham and Miller, the legislature enacted
a distinct sentencing framework for juvenile offenders rather
than using parole as the means for complying with the Supreme
Court's decisions. Id. at 1049. Thus, it follows
from Henry and Atwell that a nonhomicide
juvenile offender's term-of-years sentence with the
possibility of parole can violate the Eighth Amendment.
we reverse the postconviction court's denial of
Marshall's motion and remand for resentencing in
conformance with chapter 2014-220, Laws of Florida, as
codified in sections 775.082, 921.1401, and 921.1402, Florida
Statutes (2014). See Horsley, 160 So.3d at 395.
Reversed and remanded ...