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Toye v. State

Florida Court of Appeals, Second District

December 11, 2019

ASHLEY M. TOYE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Lee County; Bruce E. Kyle, Judge.

          Mariko Shitama Outman of Carlton Fields Jorden Burt, P.A., Tampa, and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

          KELLY, JUDGE.

         In 2007, a jury found Ashley M. Toye guilty of two counts of first-degree felony murder, two counts of kidnapping, two counts of aggravated assault, and one count of tampering with evidence based on events that occurred when Toye was seventeen years old. The trial court sentenced Toye to the mandatory sentence of life in prison without the possibility of parole for the felony murders and to concurrent sentences totaling a term of twenty-five years for the other charges. In 2008, this court per curiam affirmed Toye's judgments and sentences. Toye v. State, 988 So.2d 1104 (Fla. 2d DCA 2008) (table decision). In 2012, the Supreme Court declared that the Eighth Amendment to the United States Constitution prohibited the imposition of a mandatory life sentence without the possibility of parole for crimes committed by individuals under the age of eighteen. Miller v. Alabama, 567 U.S. 460 (2012). Relying on Miller, Toye unsuccessfully challenged her life sentences in the circuit court.[1] On appeal from that order, we reversed and instructed the circuit court to resentence Toye in accordance with the requirements of Miller. Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014).

         After we remanded but before Toye was resentenced, the Florida Supreme Court held that Miller resentencings should be conducted pursuant to newly enacted legislation intended to bring Florida law in to conformity with Miller. See Falcon v. State, 162 So.3d 954, 956-57, 963 (Fla. 2015), receded from on other grounds Williams v. State, 242 So.3d 280 (Fla. 2018); Horsley v. State, 160 So.3d 393, 395 (Fla. 2015). Pertinent to this appeal, section 775.082(1)(b), Florida Statutes (2015), provides:

1. A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted . . . of a capital felony . . . which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a).
2. A person who did not actually kill, intend to kill, or attempt to kill the victim and who is convicted . . . of a capital felony . . . which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).

         Section 921.1402, Florida Statutes (2015), in turn provides:

(2) (a) A juvenile offender sentenced under s. 775.082(1)(b)1. is entitled to a review of his or her sentence after 25 Years. . . .
. . . .
(c) A juvenile offender sentenced to a term of more than 15 years under s. 775.082(1)(b)2., s. 775.082(3)(a)5.b., or s. 775.082(3)(b)2.b. is entitled to a review of his or her sentence after 15 years.

         Thus, a finding that a juvenile offender actually killed, intended to kill, or attempted to kill results in a mandatory minimum sentence of forty years' imprisonment and judicial review after twenty-five years, while a finding that a juvenile did not actually kill, attempt to kill, or intend to ...


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