DENNIS L. HART, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Senior Assistant Attorney General, West Palm Beach, for
issue in this case is whether a 30-year prison sentence for a
non-homicide offense committed when appellant was a juvenile
violates the Eighth Amendment or Graham v. Florida,
560 U.S. 48');">560 U.S. 48 (2010). Because we cannot conclude that the
sentence violates the United States Constitution, we affirm.
1997, appellant entered an open plea to the following
offenses committed when he was 16 years old: burglary of a
dwelling while armed with a firearm (count I), robbery with a
firearm (counts II-VI), and attempted robbery with a firearm
(count VII). The trial court sentenced him to concurrent
terms of 30 years in prison for counts I through VI and 15
years for count VII.
2002, appellant moved to correct his sentence based upon
Heggs v. State, 759 So.2d 620 (Fla. 2000). The state
conceded there was a Heggs violation. With a
corrected scoresheet, appellant's maximum permissible
sentence was 21.42 years in prison. The trial court
resentenced appellant on counts II-VI to 20 years in prison.
He was not resentenced on count I and is still serving 30
years for that offense. It is unclear from the record on
appeal in this case why appellant was not resentenced on
April 2017, appellant filed the instant rule 3.800(a) motion
seeking resentencing pursuant to Graham, Henry
v. State, 175 So.3d 675 (Fla. 2015), and Kelsey v.
State, 206 So.3d 5 (Fla. 2016). Appellant argued that
the trial court must reconsider his sentence in light of the
factors enumerated in section 921.1401(2), Florida Statutes
(enacted as part of chapter 2014-220).
trial court set the case for resentencing. Prior to the
hearing, defense counsel filed memoranda of law explaining
that appellant was entitled to resentencing under the 1994
guidelines. Counsel argued that the most appellant could
receive was 21.42 years in prison and the court could not
impose an upward departure without violating Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). At the time, appellant
had served over 20 years in prison.
trial court requested additional briefing as to whether
resentencing was required, and the parties filed additional
memoranda. Discussing the Florida Supreme Court's
decisions in Kelsey, Henry, and Johnson
v. State, 215 So.3d 1237 (Fla. 2017), the defense argued
that any term-of-year sentences for juvenile offenders
without review provisions are illegal. The state asserted
that appellant's sentence did not constitute a
Graham violation and chapter 2014-220 comes into
play only if resentencing is required.
trial court denied appellant's motion based in part upon
this court's decision in Davis v. State, 199
So.3d 546 (Fla. 4th DCA 2016), which involved a 75-year
sentence challenged in a motion for postconviction relief. In
its ruling, the trial court stressed that Kelsey and
Johnson were cases where the original life without
parole sentence for non-homicide offenses clearly violated
Graham. The court concluded:
While the Court does not believe that the Supreme Court has
yet to mandate resentencing of all juveniles sentenced to a
term of years without a review mechanism, this issue is ripe
for appellate guidance. Certainly there is considerable
confusion surrounding the status of juvenile offenders whose
original sentences did not violate Graham.
this appeal was pending, the Florida Supreme Court quashed
this court's decision in Davis and remanded for
resentencing in light of the decision in Johnson.
Davis v. State, SC16-1905, 2018 WL 480516 (Fla. Jan.
Graham, the United States Supreme Court held that
the Eighth Amendment prohibits a non-homicide juvenile
offender from receiving a sentence of life without parole
unless there is "some meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation." 560 U.S. at 75. In response to
Graham, the Florida Legislature enacted chapter
2014-220, Laws of Florida, which has been codified in
sections 775.082, 921.1401, and 921.1402, Florida Statutes.
Chapter 2014-220 requires that juvenile offenders who commit
offenses after July 1, 2014 receive a review hearing and an
opportunity for early release after serving 15, 20, or 25
years depending on the crime committed and the length of the
the Florida Supreme Court decided Henry,
Kelsey, Johnson, and Lee v. State,
234 So.3d 562 (Fla. 2018). In Henry, a juvenile
non-homicide offender who was sentenced to life plus 60 years
was resentenced following Graham to an aggregate of
90 years. 175 So.3d at 676. Citing Graham, the
supreme court found the new ...