JENISE M. ORTIZ, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Keith F.
Wesley, Public Defender, and David L. Redfearn, Assistant
Public Defender, Orlando, for Appellant.
Moody, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Jenise M. Ortiz, appeals the postconviction court's
denial of her "Successive Motion for Postconviction
Relief: to Vacate, Set Aside, or Correct Sentence on Count
Two" filed pursuant to Florida Rules of Criminal
Procedure 3.850 and 3.800(a). She argues that the thirty-year
sentence without provision for periodic judicial review she
received as a juvenile when she pled guilty to first-degree
arson in 2000, is illegal due to the Eighth Amendment's
prohibition against cruel and unusual
punishment. She also claims that it is a violation of
the Equal Protection Clause to deny periodic judicial review
of her thirty-year sentence prior to its completion as would
be compelled for more serious crimes by sections 775.082,
921.1401, and 921.1402, Florida Statutes (2017). The
postconviction court's denial was based upon an issue not
raised by Appellant and its erroneous conclusion that
Appellant was barred, by the doctrine of collateral estoppel,
from litigating the issues she did raise. We reverse for the
postconviction court to entertain Appellant's motion on
relies upon Kelsey v. State, 206 So.3d 5 (Fla.
2016), substantively to establish her claim and procedurally
to justify filing the motion after the normal two-year
deadline, asserting that her motion was filed in accordance
with rule 3.850(b)(2) within two years of the Kelsey
decision, which constituted the pronouncement of a new
fundamental constitutional right, which applies
retroactively. Essentially, Appellant argues that
Kelsey expands upon Miller v. Alabama, 567
U.S. 460, 479-80 (2012), and Henry v. State, 175
So.3d 675, 679-80 (Fla. 2015), to provide a basis for holding
that juveniles who are serving lengthy-although not
life-long-prison sentences are entitled by the Eighth
Amendment to periodic judicial review to determine whether
they can demonstrate sufficient maturation and rehabilitation
so as to be entitled to release prior to completion of their
State v. Purdy, 252 So.3d 723, 726-27 (Fla. 2018),
the Florida Supreme Court acknowledged that Florida's
post-Miller juvenile statutory sentencing scheme
provides periodic judicial review only for defined homicide
offenses and nonhomicide offenses punishable by life, with no
review mechanism provided for lower-level offenses. That
potential for disparate treatment seems to be the basis of
Appellant's Equal Protection claim. As Purdy
focused on a certified question regarding statutory
interpretation, it did not resolve the Eighth Amendment or
Equal Protection issues raised by Appellant in her motion.
Id. at 725. We express no opinion on the merits or
resolution of those issues at this time to allow the
postconviction court to consider them on remand.
previously filed other postconviction motions, but none
raised the issues she argues in her current motion. The
doctrine of collateral estoppel only precludes a defendant
from relitigating the "same issues between the same
parties in connection with a different cause of action."
Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004)
(citing Clean Water, Inc. v. Dep't of Envtl.
Reg., 402 So.2d 456, 458 (Fla. 1st DCA 1981)). This
Court has stated the following:
For the doctrine of collateral estoppel to apply to bar
relitigation of an issue, five elements must be present:
"(1) an identical issue must have been presented in the
prior proceedings; (2) the issue must have been a critical
and necessary part of the prior determination; (3) there must
have been a full and fair opportunity to litigate that issue;
(4) the parties in the two proceedings must be identical; and
(5) the issues must have been actually litigated."
Cook v. State, 921 So.2d 631, 634 (Fla. 2d DCA
2005). Whether collateral estoppel precludes litigation of an
issue is reviewed de novo.
Criner v. State, 138 So.3d 557, 558 (Fla. 5th DCA
the de novo standard of review, only one element-number four-is satisfied in determining whether
collateral estoppel applies because, given the nature of the
underlying criminal case, Appellant and the State are the
same parties. As for the other elements of collateral
estoppel, Appellant's prior challenges predate the
genesis of juvenile sentencing reform. As only one element
out of the five required elements is met, we conclude that
the postconviction court erred in determining that Appellant
is collaterally estopped from raising this claim.
we reverse the order denying Appellant's motion and
remand for the postconviction court to consider and rule on