                                             IN THE DISTRICT COURT OF APPEAL
                                             FIRST DISTRICT, STATE OF FLORIDA
JAVARRIS LANE,
                                             NOT FINAL UNTIL TIME EXPIRES TO
      Appellant,                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED
v.
                                             CASE NO. 1D13-1006
STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 13, 2014.

An appeal from the Circuit Court for Duval County.
Adrian G. Soud, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




BENTON, J.

      On direct appeal, Javarris Lane challenges sentences imposed for offenses

committed when he was sixteen. After granting a motion to correct sentencing

error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court

resentenced Mr. Lane to life in prison without the possibility of parole for second-
degree murder, to a concurrent term of thirty years’ imprisonment for aggravated

child abuse, and to a term of fifty years’ imprisonment for sexual battery

consecutive both to the thirty-year and the life terms. Although we affirm the life

sentence, we reverse the sentences for the non-homicide offenses aggregating

eighty years, and remand for resentencing on the aggravated child abuse and sexual

battery charges.

      On the authority of Copeland v. State, 129 So. 3d 508 (Fla. 1st DCA 2014),

we affirm the sentence of life with no possibility of parole imposed for second-

degree murder. “[A]lthough Miller [v. Alabama, 132 S.Ct. 2455 (2012),] prohibits

the imposition of a mandatory life without parole sentence on a juvenile offender,

the Supreme Court recognized that a sentencing court may still impose a life

without parole sentence, after conducting an individualized mitigation inquiry.”

Id. at 510. See also Washington v. State, 103 So. 3d 917, 919-20 (Fla. 1st DCA

2012) (“[T]he Supreme Court in Miller ruled its decision ‘mandates only that a

sentencer follow a certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty.’” (citation omitted)). In the

present case, as in Copeland, the “sentencing court conducted an individualized

mitigation inquiry, considering several potential mitigating factors before finding

that life without the possibility of parole was, nevertheless, appropriate.”

Copeland, 129 So. 3d at 511.

                                        2
      We    reverse   the   consecutive   sentences   aggregating   eighty   years’

imprisonment, imposed for aggravated child abuse and sexual battery. We have

said that “a de facto life sentence is one that exceeds the defendant’s life

expectancy,” Adams v. State, 37 Fla. L. Weekly D1865, D1866 (Fla. 1st DCA

Aug. 8, 2012), and that such a sentence should be deemed a life sentence for

purposes of Graham v. Florida, 560 U.S. 48 (2010).1 In Floyd v. State, 87 So. 3d

45 (Fla. 1st DCA 2012), the defendant was sentenced to consecutive forty-year

terms of imprisonment for two armed robbery convictions.         We reversed the

sentences for two non-homicide offenses aggregating eighty years, holding:

            Appellant, if he serves the entirety of his sentence, will
            be ninety-seven when he is released. Even if Appellant
            received the maximum amount of gain time, the earliest
            he would be released is at age eighty-five. See §
            921.002(1)(e), Fla. Stat. (1998) (providing that parole is
            not applied to defendants sentenced under the Criminal
            Punishment Code, that sentences in Florida reflect the
            length of actual time to be served, shortened only by the
            application of incentive and meritorious gain time, and
            that defendants must serve no less than eighty-five
            percent of their term of imprisonment). This situation
            does not in any way provide Appellant with a meaningful
            or realistic opportunity to obtain release, as required by
            Graham. While the trial court was correct that the Eighth
            Amendment does not foreclose the possibility that

      1
          As recognized in Floyd v. State, 87 So. 3d 45, 47 (Fla. 1st DCA 2012),
other courts have rejected the argument that Graham v. Florida, 560 U.S. 48
(2010), applies to “de facto” life sentences caused by lengthy term-of-years
sentences. See Peters v. State, 128 So. 3d 832, 855-56 (Fla. 4th DCA 2013); Walle
v. State, 99 So. 3d 967, 971 (Fla. 2d DCA 2012); Henry v. State, 82 So. 3d 1084,
1089 (Fla. 5th DCA 2012).
                                         3
             juveniles who commit nonhomicide crimes will remain in
             prison for life, Graham also cautioned that states are
             foreclosed from making the judgment at the outset that
             those offenders will never be fit to reenter society. . . .
                 ....
                 In this case, common sense dictates[2] that Appellant’s
             eighty-year sentence, which, according to the statistics
             cited by Appellant, is longer than his life expectancy, is
             the functional equivalent of a life without parole sentence
             and will not provide him with a meaningful or realistic
             opportunity to obtain release.

Id. at 46-47. Here, as in Floyd, Mr. Lane’s sentences were imposed under the

Criminal Punishment Code, which requires convicts to serve at least eighty-five

percent of their sentences. See § 944.275(4)(b)3., Fla. Stat. (2011). 3 On the

authority of Floyd, where the challenged sentences also aggregated eighty years,4


      2
         Compare Adams v. State, 37 Fla. L. Weekly D1865, D1866 (Fla. 1st DCA
Aug. 8, 2012), where this court reversed a sentence totaling sixty years in prison
with an aggregate minimum mandatory term of fifty years for three non-homicide
offenses because the sentence exceeded Adams’ life expectancy “as reflected in the
National Vital Statistics Reports from the federal Centers for Disease Control and
Prevention cited by Appellant in his rule 3.800(b)(2) motion,” but noted that the
state did not dispute any of the facts asserted in the motion, including the projected
life expectancy. In the present case, the state objected to the argument in Mr.
Lane’s second motion to correct sentencing error that the sentence exceeded his
life expectancy because the referenced 2008 life-expectancy publication was not
placed into evidence during the sentencing hearing.
       3
         The Florida Legislature amended the procedures regarding imposing and
reviewing sentences for juvenile offenders, effective July 1, 2014. See §§ 775.082;
921.1401; 921.1402, Fla. Stat. (2014).
       4
          As in Floyd, the terms of years appellant received are consecutive, not
concurrent. No party suggests that the present case is distinguishable from prior
decisions because the thirty-year sentence for aggravated child abuse is concurrent
with the life sentence, while the fifty-year sentence for sexual battery is
consecutive to the life sentence.
                                           4
we reverse and remand for resentencing as to the two non-homicide convictions.

But see Gridine v. State, 89 So. 3d 909, 910-11 (Fla. 1st DCA 2011), review

granted, 103 So. 3d 139 (Fla. 2012) (affirming a seventy-year sentence with a

twenty-five-year minimum mandatory for a fourteen-year-old defendant).

      The state acknowledges that, under our precedent, life imprisonment without

the possibility of parole for murder does not render Graham inapplicable to the

sentences imposed for these two non-homicide offenses. See Johnson v. State, 38

Fla. L. Weekly D953, D953-54 (Fla. 1st DCA Apr. 30, 2013) (certifying conflict

with Lawton v. State, 109 So. 3d 825, 829 (Fla. 3d DCA 2013), review granted,

143 So. 3d 919 (Fla. 2014), in which the Third District Court of Appeal affirmed a

sentence of life in prison for attempted first-degree murder with a firearm, ordered

to run consecutively with a sentence of life in prison (without parole eligibility for

twenty-five years) for first-degree murder); Akins v. State, 104 So. 3d 1173, 1175-

76 (Fla. 1st DCA 2012) (holding Graham precluded a life sentence without the

possibility of parole for attempted murder because nothing in Graham “would

permit imposing life sentences without parole for nonhomicide offenses, even if

the juvenile has committed a homicide in some earlier episode or, as here, was

earlier sentenced to a term of years for a homicide”). See also Jackson v. State, 38

Fla. L. Weekly D1334, D1334-35 (Fla. 1st DCA June 18, 2013) (rejecting




                                          5
argument that Graham “recognized a limited exception when the offender has also

been convicted and sentenced for a homicide in the same proceeding, as did in fact

occur in the present case” and reversing multiple life sentences imposed for non-

homicide crimes pursuant to Graham); Weiand v. State, 129 So. 3d 434, 435 (Fla.

5th DCA 2013) (reversing concurrent terms of life in prison for kidnapping and

robbery convictions, to begin after a sentence of life in prison for a homicide

conviction). 5 But see Orange v. State, 2014 WL 4328151, at *10 (Fla. 4th DCA

Sept. 3, 2014) (holding Graham allows the imposition of a life sentence without

parole on a juvenile for a non-homicide offense when a homicide offense also

occurred in the same criminal episode); Starks v. State, 128 So. 3d 91, 92 (Fla. 2d

DCA 2013) (same); Lawton, 109 So. 3d at 828-29 (same). Here, as in Johnson, we

reverse for resentencing on the non-homicide offenses even though “he will serve

the remainder of his life in prison for the homicide offense he committed” against

the same victim. Johnson, 38 Fla. L. Weekly at D954 (reversing for Johnson to be

resentenced on a conviction of burglary with an assault).

      Affirmed in part, reversed in part, and remanded for resentencing.

LEWIS, C.J. and MARSTILLER, J., CONCUR.



      5
        The fact that the sentence of life in prison with the possibility of parole
after twenty-five years imposed for the homicide conviction in Weiand v. State,
129 So. 3d 434 (Fla. 5th DCA 2013), was less severe than the sentences of life in
prison for kidnapping and robbery convictions does not alter the analysis.
                                         6
