final until disposition of timely filed motion for rehearing.
of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Edward
Harold Merrigan, Judge; L.T. Case Nos. 79-6274 CF10A, 79-7437
CF10A, 79-8139 CF10A and 79-9358 CF10A.
Gladon, Bristol, pro se.
Jo Bondi, Attorney General, Tallahassee, and Kimberly
Acuña, Assistant Attorney General, West Palm Beach,
Gladon appeals the denial of a motion to correct illegal
sentence. He claims that a 99-year sentence for non-homicide
offenses he committed as a juvenile violates Graham v.
Florida, 560 U.S. 48 (2010), and subsequent Florida
Supreme Court decisions interpreting Graham. The
trial court denied the motion based on the state's
response, which contended relief was unavailable under rule
3.800(a), where an evidentiary hearing was needed to resolve
a factual dispute regarding appellant's birthdate. We
reverse and remand for further proceedings because the trial
court should have treated appellant's sworn motion as a
timely rule 3.850(b)(2) motion.
response below, the State disputed appellant's juvenile
status, given his date of birth as shown on the Department of
Corrections website. While appellant claimed he was 17 years
old at the time of the offenses, the State asserted he was 22
years old. Even assuming appellant was a juvenile, the State
argued that appellant's 99-year sentence was not
unconstitutional because it was not the "functional
equivalent" of a life sentence where appellant's
eligibility for parole and gain time brought his release date
within his natural lifetime.
reasoning has since been rejected by the Florida Supreme
Court, because the constitutionally relevant inquiry for a
juvenile's sentence is whether it provides a meaningful
opportunity for early release based on maturation and
rehabilitation; the length of the sentence alone is not
dispositive. See Johnson v. State, 215 So.3d 1237,
1240 (Fla. 2017) ("Graham prohibits juvenile
nonhomicide offenders from serving lengthy terms of
incarceration without any form of judicial review
mechanism."); Kelsey v. State, 206 So.3d 5,
10-11 (Fla. 2016) (declining to require that a term-of-years
sentence be a "de facto life" sentence for
Graham to apply).
the Florida Supreme Court has indicated that parole and gain
time generally do not satisfy the requirements of
Graham because neither avenue of early release is
adequately based on a juvenile's demonstration of
maturity and rehabilitation. See Johnson, 215 So.3d
at 1237 (recognizing that Graham, as articulated in
Henry v. State, 175 So.3d 675 (Fla. 2015), prohibits
"a sentence which includes early release that is not
based on a demonstration of rehabilitation and maturity"
such as gain time); Atwell v. State, 197 So.3d 1040,
1049 (Fla. 2016) ("Parole is, simply put, 'patently
inconsistent with the legislative intent' as to how to
comply with Graham and Miller [v.
Alabama, 567 U.S. 460 (2012)]." (citation
present case, appellant filed his rule 3.800(a) motion, which
is sworn under the penalty of perjury, in 2016. "[A]
motion filed under rule 3.800(a) may be treated as a motion
filed under rule 3.850 where it is in the 'interest of
justice to do so' and the motion would be timely under
rule 3.850." Johnson v. State, 60 So.3d 1045,
1052 (Fla. 2011) (citation omitted). Although appellant filed
his motion outside the two-year window of rule 3.850(b),
appellant's motion asserted he was entitled to relief
under Henry and Atwell, which were decided
in 2015 and 2016, respectively. See Fla. R. Crim. P.
3.850(b)(2) (providing an exception to the two-year time
limit where "the fundamental constitutional right
asserted was not established within the [two-year] period . .
. and has been held to apply retroactively, and the claim is
made within 2 years of the date of the mandate of the
decision announcing the retroactivity").
United States Supreme Court's decision in Graham
created a new fundamental constitutional right, and courts
have applied Graham retroactively. See St. Val
v. State, 107 So.3d 553, 554 (Fla. 4th DCA 2013).
Because Graham applies retroactively,
"Henry's application of Graham to
lengthy term of years sentences should also be given
retroactive application." Williams v. State,
197 So.3d 569, 571 (Fla. 2d DCA 2016.
appellant's motion was timely filed pursuant to rule
3.850(b)(2). See Marshall v. State, 214 So.3d 776,
777-79 (Fla. 2d DCA 2017) (reversing the denial of a rule
3.850(b)(2) motion, where juvenile non-homicide offender with
99-year sentence filed motion within two years of the
decisions in Henry and Atwell).
remand, the trial court should consider appellant's
motion under rule 3.850(b)(2) and address appellant's
claim in light of the Florida Supreme Court decisions noted
above. Assuming the State cannot conclusively refute
appellant's claim with record attachments, the trial
court should conduct an evidentiary hearing to resolve the
dispute concerning appellant's birthdate. At a hearing,
appellant will bear the burden. Fla. R. Crim. P.
3.850(f)(8)(B) ("At an evidentiary hearing, the
defendant shall have the burden of presenting evidence and
the burden of proof in support of his or her motion.").
we note that appellant is subject to sanctions if the trial
court determines that he has brought a frivolous claim or has
knowingly or recklessly made false allegations. §
944.279(1), Fla. Stat. (2016). "Postconviction movants
should also remain aware that penalties for direct contempt
of court or perjury may be imposed when movants are