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 Pasco County; Mary M. Handsel, Judge.
Elkin, pro se.
Elkin appeals the postconviction court's denial of his
"application for sentencing review by juvenile offender,
" filed pursuant to Florida Rule of Criminal Procedure
3.802. We affirm because Elkin is not entitled to review of
his sentence under section 921.1402, Florida Statutes (2017).
We write to explain why he is not so entitled.
was indicted for first-degree murder on May 30, 2003, when he
was sixteen years old. He pleaded guilty to the lesser
included offense of second-degree murder, a first-degree
felony. The trial court sentenced him on July 13, 2004, to
twenty-five years' imprisonment.
2012, the United States Supreme Court held in Miller v.
Alabama, 567 U.S. 460, 479 (2012), that a sentencing
scheme mandating life in prison without the possibility of
parole for juvenile offenders who committed a homicide
violates the Eighth Amendment prohibition against cruel and
unusual punishment. The majority reasoned that "youth
matters for purposes of meting out [sentencing laws']
most serious punishments." Id. at 483.
Sentencing courts must take into account a juvenile's
"diminished culpability and heightened capacity for
change." Id. at 479. Citing prior precedent,
the Supreme Court observed that there is "great
difficulty" in "distinguishing at this early age
between 'the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.'
" Id. at 479-80 (quoting Roper v.
Simmons, 543 U.S. 551, 573 (2005); Graham v.
Florida, 560 U.S. 48, 68 (2010)).
response to Miller, the Florida Legislature enacted
chapter 2014-220, Laws of Florida, which extensively amended
section 775.082 to provide penalties for juveniles convicted
of certain felonies and created statutes establishing both
the procedure for sentencing persons convicted of specified
offenses committed while they were juveniles and the
procedure for judicial review of such sentences. Ch.
2014-220, § 1 (amending section 775.082), § 2
(creating section 921.1401), § 3 (creating section
921.1402), at 2869-75, Laws of Fla.
in Landrum v. State, 192 So.3d 459, 469 (Fla. 2016),
the Florida Supreme Court held that a life sentence
without the possibility of parole for second-degree
murder committed by a juvenile was unconstitutional under
Miller and required resentencing pursuant to section
921.1401. The court subsequently held that a life sentence
with the possibility of parole after twenty-five
years also ran afoul of Miller because Florida's
parole process "does not provide for individualized
consideration of [the offender's] juvenile status at the
time of the murder, as required by Miller, and that
[such] sentence, which is virtually indistinguishable from a
sentence of life without parole, is therefore
unconstitutional." Atwell v. State, 197 So.3d
1040, 1041 (Fla. 2016).
on section 921.1402 and Florida Rule of Criminal Procedure
3.802(b)(3), Elkin applied for sentencing review in 2017
because he had served "nearly" fifteen years of his
twenty-five-year sentence. The postconviction court did
consider the merits of Elkin's application but denied it,
erroneously concluding that Elkin could not take advantage of
section 921.1402 because he committed his crime before the
statute's effective date of July 1, 2014. See Falcon
v. State, 162 So.3d 954, 962 (Fla. 2015) (concluding
"that juvenile offenders whose convictions and sentences
were final prior to the Supreme Court's decision in
Miller may seek collateral relief based on that
the motion was properly denied. Elkin was adjudicated guilty
of second-degree murder, a first-degree felony and a
violation of subsection 782.04(3), Florida Statutes (2002).
Therefore, the trial court was permitted to sentence him to a
term of years not exceeding life. See §§
775.082(3)(b), Fla. Stat. (2004); 782.04(3). The sentencing
court imposed a twenty-five-year sentence.
3.802(b)(3), the provision under which Elkin applied for
review, provides that a juvenile offender may seek review
"after 15 years, if the juvenile offender is sentenced
to a term of more than 15 years under sections
775.082(1)(b)2., 775.082(3)(a)5.b., or 775.08(3)(b)2.b.,
Florida Statutes." Elkin fails to recognize that the
delineated statutes involve sentencing for nonhomicide
offenses. See also § 921.1402(2)(c) (setting
forth the same limitations as rule 3.802(b)(3)).
none of rule 3.802's subsections apply to Elkin's
case. Rule 3.802(b)(1) applies to juveniles who were
sentenced to life or to imprisonment for more than
twenty-five years under sections 775.082(3)(a)(5)(a) or
(3)(b)(2)(a) for homicide offenses. Had the trial court
sentenced Elkin to a term of years exceeding twenty-five
years, he would be entitled to a sentence review after
twenty-five years. See also § 921.1402(2)(a),
(b) (setting forth the same limitations as rule 3.802(b)(1)).
Because Elkin's sentence of twenty-five years is not
"more than" twenty-five years, he is not entitled
to a sentence review under rule 3.802(b)(1). Likewise, rule
3.802(b)(2) is inapplicable to Elkin's case. Elkin's
conviction was for second-degree murder under section
782.04(3), and rule 3.802(b)(2) applies to sentences imposed
for offenses other than those included in section 782.04.
See § 775.082(3)(c); see also §
921.1402(2)(d) (setting forth the same limitations as rule
is simply not entitled to a review of his twenty-five-year
sentence for second-degree murder. Therefore, although the
postconviction court's reasoning was legally ...