       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1440
                         Lower Tribunal No. 73-5469 A
                             ________________

                                Milton Jay Jr.,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An appeal from the Circuit Court for Miami-Dade County, Richard L.
Hersch, Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before SUAREZ, SALTER, and LOGUE, JJ.

     SUAREZ, J.

     Milton 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).

        We 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.

Facts

        Milton 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 of parole.

        On July 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His parole was revoked effective June 30, 1982.

        On April 29, 1986, Jay was once again released on parole supervision. In

1988, he was taken into custody on a
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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.

      On 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.

      In April of 2017, Jay filed his motion for post conviction release to correct

illegal sentence, which the trial court denied and which we now review de novo.

Issues and Analysis

      Jay asserts that pursuant the United States Supreme Court’s decision in

Miller, and the Florida Supreme Court’s decision in Atwell, he is entitled to

resentencing under section 921.1401, Florida Statutes (2016). Miller establishes

the threshold which must be met before an Eighth Amendment challenge can be

raised in this context: a juvenile offender, sentenced to life without parole. It also

requires individualized sentencing that considers mitigating circumstances, and

that a juvenile offender must receive some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation. Cf. Graham v. Florida,

560 U.S. 48, 75 (2010).


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       Atwell extended the Miller decision to include life sentences with the

possibility of parole where the sentence effectively resembles a life without parole

sentence. The offender in Atwell was charged with first-degree murder and was

sentenced to life with the possibility of parole. Atwell, 197 So. 3d at 1050.

However, Atwell’s effective parole release date under the parole guidelines was

almost 140 years in the future. Id. The Florida Supreme Court struck down this

sentence, as the sentence did not grant the offender the meaningful opportunity for

release and lacked the individualized sentencing consideration required by Miller.

       Further, in Rooks v. State, 224 So. 3d 272 (Fla. 3d DCA 2017) and Vennisee

v. State, 235 So. 3d 947 (Fla. 3d DCA 2017), we held that a defendant is not

entitled to relief under Miller where the defendant cannot make a threshold

showing that they effectively received a sentence of life without parole or a

sentence that failed to afford them a meaningful opportunity to obtain early release.

As such, when a defendant, such as Jay, has been released on parole several times

and had that parole revoked for new law violations committed as an adult, they are

not entitled to relief.

       Applying these holdings to Jay’s case, it is clear that he cannot make the

threshold showing required under Rooks and Vennisee. He was not sentenced to

life imprisonment without parole and was not denied a meaningful opportunity for

release. He was paroled three times during his life sentence, and each time he had


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his parole revoked for committing new crimes. Therefore he is not entitled to

resentencing.

Conclusion

      We hold that Jay is not entitled to resentencing under Miller or Atwell. Jay

committed a homicide while he was a juvenile, and was sentenced in 1973 to life

with the possibility of parole. He was paroled three times—first in 1980, then

1986, and finally in 1993—and each time violated that parole by committing

additional crimes. We therefore hold that Jay was provided with a meaningful

opportunity for release, was released, and violated that release by committing new

crimes as an adult, and therefore Miller and Atwell are not implicated, Jay’s

sentence is not illegal, and he is not entitled to resentencing.1

      Affirmed.




1 Jay requested a citation to Rooks in our opinion, as the appellant in that case
petitioned the Florida Supreme Court to review our decision. If the Court had
granted the petition and found in favor of the defense, it would have allowed Jay to
seek review in the Florida Supreme Court as well. However the Court denied
review of that case, so any citation to Rooks would be irrelevant. The State
suggested including a citation to Vennisee, as the appellant in that case also
petitioned the Florida Supreme Court to review our decision. This suggestion is
also moot, as the Court has denied review of that case as well.
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