final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 04-5205 John Schlesinger, Judge.
J. Martinez, Public Defender, and Maria Lauredo, Chief
Assistant Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
ROTHENBERG, C.J., and SALTER and SCALES, JJ.
Hernandez appeals his amended sentencing order entered
following this Court's opinion vacating in part and
remanding his conviction and sentence in Hernandez v.
State, 117 So.3d 778 (Fla. 3d DCA 2013)
("Hernandez I"). In accordance with that
opinion, Hernandez was resentenced on his first-degree murder
conviction as required by Miller v. Alabama, 567
U.S. 460 (2012). On remand, the trial court applied
Florida's juvenile sentencing laws enacted in
reasons which follow, we affirm the amended sentencing order
as to Hernandez's sentence for first-degree murder, Count
I, and we affirm in part and reverse and remand in part his
sentence for attempted first-degree murder on Count II.
September 24, 2008, a jury found Michael Hernandez guilty of
the first-degree murder of a fourteen-year-old middle school
student and the attempted first-degree murder of a
thirteen-year-old student. At the time of his crimes,
Hernandez was fourteen years old. The trial court sentenced
Hernandez to life without the possibility of parole for
first-degree murder and to a consecutive term of thirty years
for attempted first-degree murder." Hernandez
I, 117 So.3d at 779.
appeal from the convictions and sentences, Hernandez
challenged his sentence for the first-degree murder as
violative of the United States and Florida Constitutions, and
he raised three issues directed to the validity of the
convictions for the counts of first-degree murder and
attempted first-degree murder. He did not challenge, and thus
this Court did not address, the validity of his consecutive
thirty-year sentence for the attempted first-degree murder.
convictions and sentences were affirmed in Hernandez
I, with the single exception already described:
"Hernandez's sentence of life without the
possibility of parole for first-degree murder is
unconstitutional because it was mandatorily imposed.
Accordingly, we vacate his sentence for first-degree murder
and remand for resentencing on the first-degree murder
conviction in accordance with Miller."
Hernandez I, 117 So.3d at 786.
The Resentencing and This Appeal
2016, the trial court conducted a three-day remanded
sentencing hearing on the first-degree murder conviction. In
the interim between Hernandez I and the resentencing
hearing, the Florida Legislature enacted chapter 2014-220,
Laws of Florida, effective July 1, 2014, amending the
sentencing scheme applicable to juveniles convicted of
murder. In particular, the amendments incorporated
in new section 921.1401, Florida Statutes (2014), the factors
required to be considered under the United States Supreme
Court's decision in Miller:
921.1401. Sentence of life imprisonment for persons
who are under the age of 18 years at the time of the offense;
(1) Upon conviction or adjudication of guilt of an offense
described in s. 775.082(1)(b), s. 775.082(3)(a) 5., s.
775.082(3)(b) 2., or s. 775.082(3)(c) which was committed on
or after July 1, 2014, the court may conduct a separate
sentencing hearing to determine if a term of imprisonment for
life or a term of years equal to life imprisonment is an
(2) In determining whether life imprisonment or a term of
years equal to life imprisonment is an appropriate sentence,
the court shall consider factors relevant to the offense and
the defendant's youth and attendant circumstances,
including, but not limited to:
(a) The nature and circumstances of the offense committed by
(b) The effect of the crime on the victim's family and on
(c) The defendant's age, maturity, intellectual capacity,
and mental and emotional health at ...