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Montgomery v. State

Florida Court of Appeals, Fifth District

November 9, 2017

DARRIUS MONTGOMERY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, Renee A. Roche, Judge.

          James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

          ORFINGER, J.

         Darrius Montgomery, seventeen years old at the time he committed his offenses, was convicted of attempted robbery with a firearm, aggravated assault with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm. On each count, the jury found that he discharged a firearm resulting in great bodily harm but not death. Montgomery was later sentenced to twenty-five years' imprisonment with twenty- five-year mandatory minimum terms for the attempted robbery and aggravated battery offenses, twenty years' imprisonment with a twenty-year mandatory minimum term for the aggravated assault, and thirty years' imprisonment with a twenty-five-year mandatory minimum term for the attempted felony murder. All sentences were imposed pursuant to the 2012 version of the 10-20-Life statute, section 775.087(2), Florida Statutes, and ordered to be served concurrently.

         While his appeal was pending, Montgomery filed a timely motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that he is a juvenile offender and entitled to a juvenile sentencing hearing and judicial review hearing in accordance with the procedures outlined in chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014), for the attempted robbery, aggravated battery, and attempted felony murder convictions. The trial court agreed in part, and ordered a new sentencing hearing for those three convictions. After the hearing, the State submitted a memorandum of law, conceding that Montgomery was entitled to a review of his sentence after twenty years pursuant to section 921.1402(2)(d).[1]The trial court then entered an order granting review of Montgomery's sentences after twenty years but did not issue amended sentencing orders. Montgomery filed a second rule 3.800(b)(2) motion, asking the court to vacate his sentences for those three convictions and to hold a juvenile sentencing hearing under section 775.082(3)(c), and make the necessary findings in accordance with sections 921.1401 and 921.1402 that he is a juvenile offender and entitled to a sentencing review hearing after twenty years. Montgomery also asked the court to vacate the mandatory minimum sentences imposed under section 775.087(2) on all four of his convictions, arguing that, as to juveniles, the 2014 juvenile sentencing statutes supersede the mandatory minimum sentences required by section 775.087(2). The trial court disagreed, rescinded its earlier order, and held that Montgomery was not entitled to a review hearing after serving twenty years.

         On appeal, Montgomery argues that he is entitled to resentencing as his sentences violate the Eighth Amendment to the United States Constitution and that the 10-20-Life statute no longer applies to juvenile offenders tried and convicted as adults. We agree in part and reverse. The legality of a sentence is a question of law, and thus, subject to de novo review. Pinkard v. State, 185 So.3d 1289, 1289-90 (Fla. 5th DCA 2016). Similarly, our review of the constitutionality of a sentence is de novo. Peterson v. State, 193 So.3d 1034, 1038 (Fla. 5th DCA 2016).

         The unsettled state of juvenile sentencing for nonhomicide offenders began with Graham v. Florida, 560 U.S. 48 (2010), when the Supreme Court held that the United States Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit a homicide. The Court explained that a state is not required to guarantee the juvenile offender eventual release, but if it imposes a life sentence, it must provide the juvenile with some realistic opportunity to obtain release before the end of that term. Following Graham, a unanimous Florida Supreme Court held that "the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonhomicide offender's sentence does not afford any 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" Henry v. State, 175 So.3d 675, 679 (Fla. 2015) (quoting Graham, 560 U.S. at 75). In reaching this holding the Florida Supreme Court reasoned that the "Supreme Court's long-held and consistent view that juveniles are different" supported the conclusion that "the specific sentence that a juvenile nonhomicide offender receives for committing a given offense is not dispositive as to whether the prohibition against cruel and unusual punishment is implicated." Id. at 680. Accordingly, it determined that Graham was intended 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." Id. The holding in Henry was not predicated on the length of the sentence, but rather on the status of, and the opportunity afforded, the juvenile offender for early release. Johnson v. State, 215 So.3d 1237, 1240 (Fla. 2017); Henry, 175 So.3d at 680 (stating that "Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating [juvenile nonhomicide] offenders for demonstrable maturity and reform in the future").

         In Kelsey v. State, 206 So.3d 5 (Fla. 2016), the supreme court reiterated its reasoning that the constitutionality of a juvenile offender's sentence is not based on the length of the sentence, but rather, it is dependent upon whether the sentence provided the offender with a meaningful opportunity for early release based on maturation and rehabilitation. Id. at 9. Based on its decision in Henry, which it described as "unequivocal, " it reaffirmed that all juvenile offenders whose sentences met the standard defined by the Legislature in chapter 2014-220, Laws of Florida, which includes any sentence longer than twenty years, are entitled to judicial review, not simply those term-of-years sentences that are "de facto life." Id. at 9-11. Thus, the Florida Supreme Court has "determined that Graham prohibits juvenile nonhomicide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism." Johnson, 215 So.3d at 1240. The length of the sentence alone is not dispositive. Rather, the Florida Supreme Court has concluded that the Eighth Amendment, as read through Graham, requires a review mechanism for nonhomicide juvenile offenders because "any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult." Id. (citing Henry, 175 So.3d at 680). Our supreme court has opined that reading Graham, Henry and Kelsey together requires that juvenile nonhomicide offenders receive sentences that provide a meaningful opportunity for early release based on demonstrated maturity and rehabilitation during their natural lifetimes. Id. at 1239.

         In an effort to comply with Graham, in 2014, the Legislature passed chapter 2014- 220, Laws of Florida, which provided judicial review for juvenile offenders, who were tried as adults, and received sentences of more than twenty years' incarceration, with certain exceptions. In considering a remedy for a Graham violation, our supreme court concluded in Horsley v. State, 160 So.3d 393, 394-95, 405 (Fla. 2015), that chapter 2014-220, Laws of Florida, brought Florida's juvenile sentencing statutes into compliance with Graham and provided an appropriate remedy for all juvenile offenders whose sentences are unconstitutional even when, as here, the juvenile's offense was committed prior to the July 1, 2014, effective date of the legislation. See also Falcon v. State, 162 So.3d 954, 963 (Fla. 2015).

         Following Graham, Henry and Horsley, this Court in Peterson v. State, 193 So.3d 1034 (Fla. 5th DCA 2016), review denied, No. SC16-1211 (Fla. June 23, 2017), explained that, regardless of whether a juvenile offender's sentence is a de facto life sentence, a lengthy term-of-years sentence that does not afford a nonhomicide juvenile offender a meaningful opportunity for early release based on demonstrated maturity and rehabilitation violates Graham and the Eighth Amendment, requiring resentencing with retroactive application of the 2014 sentencing framework. We concluded that the supreme court's admonition that a constitutional sentence is one that provides a meaningful opportunity for early release is not satisfied simply because the juvenile may be released from prison at some point before the conclusion of his or her life expectancy. Peterson, 193 So.3d at 1038. As a result, we held that Peterson's fifty-six-year sentence could not stand under Graham and its progeny, and remanded for the trial court to resentence him under the 2014 juvenile sentencing statutes pursuant to Horsley. Id. at 1039; see also Burrows v. State, 219 So.3d 910, 911 (Fla. 5th DCA 2017) (holding defendant with concurrent twenty-five-year sentences was entitled to judicial review after twenty years); Tyson v. State, 199 So.3d 1087, 1088 (Fla. 5th DCA 2016) (holding defendant with aggregate forty-five-year sentence was entitled to judicial review after twenty years).

         Based on these precedents, we agree that the trial court erred in denying Montgomery's rule 3.800(b) motions.[2] We reverse Montgomery's sentences for attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm and remand for resentencing in conformance with the 2014 juvenile sentencing statutes, which includes the judicial review provided by section 921.1402. However, Montgomery is not entitled to resentencing or a review hearing on the aggravated assault with a firearm conviction. See Kelsey, 206 So.3d at 11 (holding Graham required judicial review hearings for juvenile offenders who are sentenced to terms longer than twenty years).

         Montgomery's challenge to the imposition of the twenty-five-year mandatory minimum prison sentences under section 775.087(2), Florida Statutes (2012), commonly known as the 10-20-Life statute, requires us to consider the interplay between the mandatory minimum sentences imposed here and the juvenile sentencing scheme, which mandates a review hearing with the possibility of early release. The 10-20-Life statute provides for mandatory minimum sentences for certain offenses when a defendant possesses a firearm (minimum term of imprisonment of either three years or ten years, depending on the offense), discharges a firearm (minimum term of imprisonment of twenty years), or discharges a firearm and as the result of the discharge, inflicts death or great bodily harm ("minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison"). § 775.087(2)(a)(1)-(3), Fla. Stat. (2012). At the same time, under the 2014 juvenile sentencing statutes, a juvenile offender who commits a life or first-degree felony punishable by life is entitled to an individualized sentencing hearing under sections 775.082(3) and 921.1401, Florida Statutes (2014). And, a juvenile nonhomicide offender "sentenced to a term ...


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