final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Dan L.
Vaughn, Judge; L.T. Case No. 561990CF002729A.
Haughwout, Public Defender, and Paul Edward Petillo,
Assistant Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for
Jerome Jones appeals a trial court's order that vacated a
prior resentencing order and denied his motion for
postconviction relief. We reverse and remand because the
trial court lacked jurisdiction to vacate the resentencing
order. See Taylor v. State, 140 So.3d 526 (Fla.
2014); Simmons v. State, 44 Fla.L.Weekly D1301 (Fla.
1st DCA May 16, 2019).
was sentenced in 1992 for first-degree felony murder that he
committed while a juvenile. In 1994, the trial court
resentenced him to include the possibility for parole.
2017, Jones moved for resentencing based on Atwell v.
State, 197 So.3d 1040 (Fla. 2016), and its
interpretation of the United States Supreme Court's
Graham/Miller progeny. Graham v. Florida,
560 U.S. 48 (2010) (holding that it was a violation of the
Eighth Amendment to sentence a juvenile to life imprisonment
without the possibility of parole for a nonhomicide offense);
Miller v. Alabama, 567 U.S. 460, 479 (2012)
(extending Graham's reasoning to juveniles
sentenced to a mandatory term of life without parole for a
trial court entered the initial resentencing order because
Atwell held as unconstitutional a juvenile homicide
offender's mandatory life sentence despite the
possibility of parole. Atwell reasoned that
Florida's parole system failed to provide for individual
consideration of a juvenile's maturity and
rehabilitation. Atwell, 197 So.3d at 1048-50. The
State did not appeal, seek rehearing, or move to stay that
resentencing order. Rather, more than a year later, the State
objected to the resentencing based on changes in the law
holding that a life sentence with eligibility for parole
after twenty-five years does not offend Miller or
Graham. Franklin v. State, 258 So.3d 1239 (Fla.
2018); State v. Michel, 257 So.3d 3 (Fla. 2018),
cert. denied, ___U.S.___, 139 S.Ct. 1401, 203
L.Ed.2d 630 (2019). The trial court agreed, vacated its
initial resentencing order, and denied Jones' motion for
First District recently quashed a comparable order concluding
that the trial court lacked jurisdiction to rescind its first
"final" resentencing order. Simmons, 44
Fla.L.Weekly at 1301-02. The order granting resentencing
became final when neither party moved for rehearing or
appealed that order. Id. at 1301 (citing
Taylor, 140 So.3d at 528-29; Slocum v.
State, 95 So.3d 911, 912 (Fla. 1st DCA 2012); Jordan
v. State, 81 So.3d 595, 596 (Fla. 1st DCA 2012)).
agree and quash the order on appeal, and remand with
directions that the trial court reinstate the order granting
resentencing. As outlined in Simmons, the trial
court should then resentence Jones to a lawful sentence.
Id. at 1302. Moreover, as Judge Bilbrey recognized
in his concurring opinion in Simmons, the
"decisional law effective at the time of the
resentencing applies." Id. (quoting State
v. Fleming, 61 So.3d 399, 400 (Fla.
2011)); see also Bellay v. State, No.
4D17-3866, 2019 WL 2998536 (Fla. 4th DCA July 10, 2019)
(re-imposing life sentence pursuant to Atwell
resentencing). While Jones presents substantive challenges to
the current decisional law, we decline to consider those