          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1063
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RICHARD DAY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Clay County.
Michael S. Sharrit, Judge.

                          March 18, 2019


WINSOR, J.

    In 1978, Richard Day pleaded guilty to a murder he committed
shortly before his eighteenth birthday. According to Florida Parole
Commission records, Day went to the victim’s home, crushed her
skull with a broken-off table leg, and stabbed her twenty times.
The court sentenced Day to life in prison.

     In 1991, Day was paroled and left prison. He later violated the
terms of his parole by absconding and failing to pay costs. He
returned to prison in 1994 but was paroled again in 1995. The
State then transferred his supervision to Alabama, where Day
chose to live. But he violated parole there too, this time by testing
positive for drugs. He returned to prison in 2000, where he
remains.
      Day moved for postconviction relief, arguing that his original
life sentence violated Miller v. Alabama, which held that “the
Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile offenders.”
567 U.S. 460, 479 (2012). He argues that he is entitled to a new
sentence under Florida’s recently revised juvenile sentencing laws,
which the Legislature enacted in response to Miller and Graham
v. Florida, 560 U.S. 48 (2010). See § 921.1401, Fla. Stat.; see also
Horsley v. State, 160 So. 3d 393, 394 (Fla. 2015). The trial court
denied relief, and Day now appeals.

      The Florida Supreme Court has held that Miller can apply
even when the life sentence was not mandatory. See Landrum v.
State, 192 So. 3d 459, 460 (Fla. 2016). The juvenile in Landrum,
like Day, was convicted of second-degree murder, meaning the life
sentence was discretionary. Id. Nonetheless, Day cannot succeed
because he cannot show his sentence precluded any meaningful
opportunity for release in his lifetime. As the Florida Supreme
Court recently held, Florida’s parole process “fulfills Graham’s
requirement that juveniles be given a ‘meaningful opportunity’ to
be considered for release during their natural life based upon
‘normal parole factors.’” Franklin v. State, 258 So. 3d 1239, 1241
(Fla. 2018) (citation omitted) (quoting Virginia v. LeBlanc, 137 S.
Ct. 1726, 1729 (2017)). Indeed, Florida’s parole process led to Day’s
actual release—more than once. Cf. Currie v. State, 219 So. 3d 960,
960 (Fla. 1st DCA 2017) (“Appellant was afforded a meaningful
opportunity to obtain release and, in fact, was released on parole
when he was 25 years old.”); see also State v. Michel, 257 So. 3d 3,
7 (Fla. 2018) (plurality) (“Michel’s sentence does not violate
Graham or Miller because Michel was not sentenced to life without
the possibility of parole.”); Wright v. State, 225 So. 3d 360, 361 (Fla.
1st DCA 2017) (for successful postconviction motion based on
Graham, appellant must “allege that he has never been released
and has no meaningful opportunity to obtain release within his
lifetime” (citing Currie)).

     Day argues that his case is different because the violations
that ended his parole were “technical violations.” But the issue is
not what led to a paroled offender’s return to prison, but whether
the original sentence was lawful. And the original sentence was
lawful if it afforded a meaningful opportunity for release within

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Day’s lifetime, which it did.* We reject any contention that the
specifics of Day’s subsequent parole violations undermine the
legality of his original sentence. See Franklin, 258 So. 3d at 1241.
Therefore, the trial court correctly denied relief.

    AFFIRMED.

ROWE and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Frank X. Moehrle,
Assistant Attorney General, Tallahassee, for Appellee.




    * Although not at issue here, Miller does not categorically bar
life-without-parole sentences for juveniles guilty of homicide. See
567 U.S. at 479.

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