final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Charles W.
Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.
REMAND FROM THE SUPREME COURT OF FLORIDA
Florida Supreme Court quashed our opinion affirming Kadeem
Hart's judgments and sentences and remanded this case
"in light of [its] decision in Kelsey [v.
State, 206 So.3d 5 (Fla. 2016)]." Hart v.
State, 2017 WL 836804 (Fla. Mar. 3, 2017). We must thus
consider whether Hart is entitled to resentencing. Unlike
other cases remanded in light of Kelsey, the supreme
court's remand in this case did not provide specific
instructions for resentencing. See Smith v. State,
2016 WL 7217234 (Fla. Dec. 13, 2016) (remanding "for
resentencing" pursuant to Kelsey); Galan
v. State, 2016 WL 7212331 (Fla. Dec. 13, 2016)
(remanding "for resentencing" in light of
this reason, we directed the parties to show cause whether
Hart was entitled to relief under Kelsey. The State
responded that Hart is not within the class of juvenile
nonhomicide offenders entitled to relief under
Kelsey because his original life sentence was not
reversed pursuant to Graham v. State, 560 U.S. 48');">560 U.S. 48
(2010), and his fifty-year aggregate sentence imposed after
he was granted a new trial does not violate Graham.
Hart replied that requiring him to serve his aggregate
fifty-year sentence without judicial review after twenty
years would violate the Eighth Amendment. For the reasons
that follow, we affirm.
was charged with carjacking, kidnapping, aggravated battery
with a deadly weapon, armed robbery, and two counts of sexual
battery. He was fifteen years old when he committed the
testimony at trial established that Hart's first victim
was walking home around 5:00 p.m. on January 5, 2007, when
Hart approached her from behind, grabbed her arm, and put
what she assumed to be a gun to her back. He took the victim
to a wooded area, where he ordered her to remove her clothes.
Over the course of the next forty-five minutes, Hart
repeatedly hit the victim with his gun and raped her
vaginally, orally, and anally. After he finished, Hart kept
the victim's shirt, bra, and cell phone as
"souvenirs" before running off. During the
incident, Hart struck the victim so hard on her head with his
gun that she lost consciousness. When the victim finally
received medical attention, she required multiple stitches
for a wound on her forehead and was required to wear a neck
hours after he raped the first victim, Hart and his cousin
approached a second victim who had arrived at her
father's home around 10:20 p.m. Because her father's
home had a long driveway inside a closed gate, the victim had
to exit her car to open the gate. The end of the driveway was
well lit by a street light. When she exited her vehicle, Hart
and his cousin were standing nearby, holding guns. The men
pointed their guns at her and demanded her car, her keys, her
cell phone, and her purse. The victim gave Hart and his
cousin what they wanted and they drove off. The carjacking
occurred approximately one block from where the first victim
jury convicted Hart of sexual battery, battery as a
lesser-included offense of sexual battery, kidnapping,
aggravated battery with a deadly weapon, armed robbery, and
carjacking. The trial court sentenced Hart to concurrent
terms of life in prison on the sexual battery, armed robbery,
and carjacking convictions; one year on the battery
conviction; thirty years on the kidnapping conviction; and
fifteen years on the aggravated battery conviction. Hart
appealed, arguing that the charges involving the two victims
were improperly joined and should have been separately tried.
This Court agreed, reversed Hart's convictions, and
ordered separate trials on remand. Hart v. State, 70
So.3d 615, 620 (Fla. 1st DCA 2011) (Hart I).
remand, Hart entered a plea to sexual battery, kidnapping,
and the lesser-included offense of unarmed carjacking. The
trial court sentenced Hart to concurrent thirty-year
sentences for sexual battery and kidnapping and to a
consecutive sentence of twenty years' imprisonment for
carjacking, for an aggregate term of fifty years in prison.
We affirmed Hart's convictions and sentences on direct
appeal with a citation to our opinion in Kelsey v.
State, 183 So.3d 439 (Fla. 1st DCA 2015) (Kelsey
I). See Hart v. State, 184 So.3d 664, 664 (Fla.
1st DCA 2016) (Hart II). Hart then petitioned for
review in the Florida Supreme Court. His petition was granted
and this Court's decision was quashed and remanded in
light of the decisions in Henry v. State, 175 So.3d
675 (Fla. 2015), and Gridine v. State, 175 So.3d 672
(Fla. 2015). See Hart v. State, 2016 WL 237904 (Fla.
Jan. 20, 2016) (Hart III). The supreme court stayed
the proceedings in this Court while it considered the
disposition of our decision in Kelsey I. After it