final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 73-5469 A, Richard L. Hersch, Judge.
J. Martinez, Public Defender, and Jonathan Greenberg,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
SUAREZ, SALTER, and LOGUE, JJ.
Jay, Jr. appeals the denial of his motion for post-conviction
relief. Jay was 17 years old when he pled guilty to
second-degree murder in 1973. He was sentenced to life with
the possibility of parole. Jay contends that his sentence is
unconstitutional under the Eighth Amendment and based on the
United States Supreme Court's decision in Miller v.
Alabama, 567 U.S. 460 (2012), and the Florida Supreme
Court's decision in Atwell v. State, 197 So.3d
1040 (Fla. 2016).
affirm the trial court's order denying Jay's motion
for post-conviction relief, and hold that because Jay was
sentenced to life with parole eligibility, was later paroled
from prison three separate times, and then violated each
parole by committing new crimes as an adult, neither
Miller nor Atwell is implicated and Jay is
not entitled to resentencing.
Jay, Jr. was born on November 8th, 1955. In July 1973, when
he was 17 years old, he was charged with first-degree murder.
On April 23, 1974, Jay pled guilty to second-degree murder
and was sentenced to life imprisonment with the possibility
1, 1980, at the age of twenty-five and after serving
approximately six years in prison, Jay was released and
placed on parole supervision. In 1982 he violated that parole
and was sentenced to additional five-year terms after being
convicted of Battery on a Law Enforcement Officer and
Possession of Cocaine. His parole was revoked effective June
April 29, 1986, Jay was once again released on parole
supervision. In 1988, he was taken into custody on a parole
violation. He was sentenced to an additional term of 366 days
in prison for Robbery with a Firearm and Possession/Use of a
Firearm. His parole was again revoked shortly after.
January 12, 1993, for a third time, Jay was again release
from custody on parole supervision. In December of 2001 Jay
was again returned to Department custody for a parole
violation, this time having been sentenced to a term of seven
years for Racketeering and Conspiracy to Traffic in Cocaine.
His parole was revoked in February 2002.
April of 2017, Jay filed his motion for post conviction
release to correct illegal sentence, which the trial court