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Hart v. State

Florida Court of Appeals, Fourth District

May 2, 2018

DENNIS L. HART, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-1997-CF-001467-BXXX-MB.

          Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.

         EN BANC

          Levine, J.

         The 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.

         In 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.

         In 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 count I.

         In 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).

         The 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.

         The 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.

         The 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.

         While 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. 19, 2018).

         In 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 prison sentence.

         Subsequently, 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 ...


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