           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                        Nos. 1D13-1754
                             1D13-1810
                         (Consolidated)
                 _____________________________

KADEEM QUAISHAWN HART,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Charles W. Arnold, Judge.

                           June 4, 2018


         ON REMAND FROM THE SUPREME COURT OF FLORIDA

ROWE, J.

     The Florida Supreme Court quashed our opinion affirming
Kadeem Hart’s judgments and sentences and remanded this case
“in light of [its] decision in Kelsey [v. State, 206 So. 3d 5 (Fla.
2016)].” Hart v. State, 2017 WL 836804 (Fla. Mar. 3, 2017). We
must thus consider whether Hart is entitled to resentencing.
Unlike other cases remanded in light of Kelsey, the supreme court’s
remand in this case did not provide specific instructions for
resentencing. See Smith v. State, 2016 WL 7217234 (Fla. Dec. 13,
2016) (remanding “for resentencing” pursuant to Kelsey); Galan v.
State, 2016 WL 7212331 (Fla. Dec. 13, 2016) (remanding “for
resentencing” in light of Kelsey).

     For this reason, we directed the parties to show cause whether
Hart was entitled to relief under Kelsey. The State responded that
Hart is not within the class of juvenile nonhomicide offenders
entitled to relief under Kelsey because his original life sentence
was not reversed pursuant to Graham v. State, 560 U.S. 48 (2010),
and his fifty-year aggregate sentence imposed after he was granted
a new trial does not violate Graham. Hart replied that requiring
him to serve his aggregate fifty-year sentence without judicial
review after twenty years would violate the Eighth Amendment.
For the reasons that follow, we affirm.

                                  I.

     Hart was charged with carjacking, kidnapping, aggravated
battery with a deadly weapon, armed robbery, and two counts of
sexual battery. He was fifteen years old when he committed the
offenses.

     The testimony at trial established that Hart’s first victim was
walking home around 5:00 p.m. on January 5, 2007, when Hart
approached her from behind, grabbed her arm, and put what she
assumed to be a gun to her back. He took the victim to a wooded
area, where he ordered her to remove her clothes. Over the course
of the next forty-five minutes, Hart repeatedly hit the victim with
his gun and raped her vaginally, orally, and anally. After he
finished, Hart kept the victim’s shirt, bra, and cell phone as
“souvenirs” before running off. During the incident, Hart struck
the victim so hard on her head with his gun that she lost
consciousness. When the victim finally received medical attention,
she required multiple stitches for a wound on her forehead and was
required to wear a neck brace.

     A few hours after he raped the first victim, Hart and his cousin
approached a second victim who had arrived at her father’s home
around 10:20 p.m. Because her father’s home had a long driveway
inside a closed gate, the victim had to exit her car to open the gate.
The end of the driveway was well lit by a street light. When she
exited her vehicle, Hart and his cousin were standing nearby,

                                  2
holding guns. The men pointed their guns at her and demanded
her car, her keys, her cell phone, and her purse. The victim gave
Hart and his cousin what they wanted and they drove off. The
carjacking occurred approximately one block from where the first
victim was raped.

     The jury convicted Hart of sexual battery, battery as a lesser-
included offense of sexual battery, kidnapping, aggravated battery
with a deadly weapon, armed robbery, and carjacking. The trial
court sentenced Hart to concurrent terms of life in prison on the
sexual battery, armed robbery, and carjacking convictions; one
year on the battery conviction; thirty years on the kidnapping
conviction; and fifteen years on the aggravated battery conviction.
Hart appealed, arguing that the charges involving the two victims
were improperly joined and should have been separately tried.
This Court agreed, reversed Hart’s convictions, and ordered
separate trials on remand. Hart v. State, 70 So. 3d 615, 620 (Fla.
1st DCA 2011) (Hart I).

     On remand, Hart entered a plea to sexual battery,
kidnapping, and the lesser-included offense of unarmed
carjacking. The trial court sentenced Hart to concurrent thirty-
year sentences for sexual battery and kidnapping and to a
consecutive sentence of twenty years’ imprisonment for carjacking,
for an aggregate term of fifty years in prison. We affirmed Hart’s
convictions and sentences on direct appeal with a citation to our
opinion in Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015)
(Kelsey I). See Hart v. State, 184 So. 3d 664, 664 (Fla. 1st DCA
2016) (Hart II). Hart then petitioned for review in the Florida
Supreme Court. His petition was granted and this Court’s decision
was quashed and remanded in light of the decisions in Henry v.
State, 175 So. 3d 675 (Fla. 2015), and Gridine v. State, 175 So. 3d
672 (Fla. 2015). See Hart v. State, 2016 WL 237904 (Fla. Jan. 20,
2016) (Hart III). The supreme court stayed the proceedings in this
Court while it considered the disposition of our decision in Kelsey
I. After it quashed our decision in Kelsey I, the supreme court
quashed the decision in Hart’s case and remanded the case in light
of their decision in Kelsey v. State, 206 So. 3d 5 (Fla. 2016) (Kelsey
II). See Hart v. State, 2017 WL 836804 (Fla. Mar. 3, 2017) (Hart
IV).


                                  3
                                II.

     In Graham, the United States Supreme Court held that a
juvenile offender who did not commit a homicide offense could not
be sentenced to life without parole. 560 U.S. at 82. The Supreme
Court did not require that a juvenile nonhomicide offender be
guaranteed eventual release. Id. at 75. Rather, the Court held
that if a life sentence was imposed on an offender who committed
a nonhomicide offense as a juvenile, the offender must be provided
a meaningful opportunity for release based on demonstrated
maturity and rehabilitation. Id. Two years later, in Miller v.
Alabama, 567 U.S. 460, 465 (2012), the Supreme Court held that
juvenile offenders convicted of homicide offenses could not be
sentenced to mandatory terms of life in prison without the
possibility of parole.

     In 2014, the Florida Legislature enacted chapter 2014-220,
Laws of Florida, codified in sections 775.082, 921.1401, and
921.1402 of the Florida Statutes, with an effective date of July 1,
2014 (“new juvenile sentencing laws”). These changes to the
sentencing laws were designed to provide a remedy for those
offenders whose sentences were unconstitutional pursuant to
Miller and Graham. The new laws were not designed as a
mechanism for all offenders convicted of crimes they committed as
juveniles to obtain judicial review of their sentences.

     After the Legislature enacted the new juvenile sentencing
laws, the Florida Supreme Court held that the new laws applied
retroactively to offenses committed before the effective date of the
new laws. In Horsley v. State, 160 So. 3d 393, 394 (Fla. 2015), the
Florida Supreme Court was called upon to decide the proper
remedy for a Miller violation. The supreme court determined that
the new juvenile sentencing laws provided a remedy “to all juvenile
offenders whose sentences [were] unconstitutional under Miller.”
Id. at 409. Horsley’s retroactive application of the new juvenile
sentencing laws brought Florida’s juvenile sentencing scheme into
compliance with Miller and provided a remedy for all juvenile
offenders with unconstitutional sentences, even if the offense was
committed prior to the July 1, 2014, effective date. See Falcon v.
State, 162 So. 3d 954, 963 (Fla. 2015), receded from on other


                                 4
grounds by Williams v. State, 2018 WL 1007810 (Fla. Feb. 22,
2018).

      The Florida Supreme Court expanded the class of juvenile
nonhomicide offenders entitled to relief under Graham in Henry v.
State, 175 So. 3d 675, 676 (Fla. 2015). But see McCullough v. State,
168 A. 3d 1045 (Md. Ct. Spec. App. 2017) (declining to extend the
holding in Graham to apply to lengthy consecutive sentences). 1
There, the unanimous supreme court held that Graham’s
prohibition against life without parole sentences for juvenile
nonhomicide offenders was not limited to offenders sentenced to
life imprisonment. Id. at 679-80. Instead, the supreme court held
that Graham also prohibited sentences that were the functional
equivalent of life sentences. Id. at 680. Henry had originally been
sentenced to life imprisonment for multiple nonhomicide offenses.
Id. at 676. Following Graham but before the Florida Legislature
enacted the new juvenile sentencing laws, Henry was resentenced
to an aggregate ninety-year prison term. Id. The supreme court
held that Henry’s ninety-year sentence amounted to a de facto life
sentence and did not afford Henry a “meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation”
within his natural life. Id. at 679. The supreme court ordered
Henry to be resentenced “in light of the new juvenile sentencing
legislation enacted by the Florida Legislature in 2014, ch.2014–
220, Laws of Fla.” Id. at 680.

    The Florida Supreme Court further expanded the class of
juvenile nonhomicide offenders entitled to relief under Graham
and resentencing under the new juvenile sentencing laws by

    1
       In McCullough, the Maryland Court of Special Appeals
surveyed cases throughout the United States to determine how
state courts had applied the holding in Graham. Five states
declined to apply Graham to “multiple term-of-years sentences for
multiple offenses that, cumulatively, exceed a juvenile offender’s
natural life expectancy.” Id. at 717. The court also found that at
least five states, including Florida, had applied Graham to
“aggregate term-of-years sentences imposed on juvenile offenders
for multiple nonhomicide crimes when the sentences are the
functional equivalent of [life without parole].” Id. at 724.

                                 5
extending its holding in Henry to include lengthy term-of-years
sentences. Kelsey II, 206 So. 3d at 5. However, the supreme court
did not hold that all offenders convicted of nonhomicide crimes
committed as juveniles were entitled to resentencing under
Graham and the new juvenile sentencing laws. In Kelsey II, the
supreme court rephrased the question certified to it as follows:

    Is a defendant whose original sentence violated Graham
    v. Florida, 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 825]
    (2010), and who was subsequently resentenced prior to
    July 1, 2014, entitled to be resentenced pursuant to the
    provisions of chapter 2014–220, Laws of Florida?

Id. at 6. Answering the question in the affirmative, the supreme
court emphasized that its holding was limited to “a narrow class of
juvenile offenders, those resentenced from life to term-of-years
sentences after Graham, for crimes committed before chapter 2014-
220’s July 1, 2014, effective date.” Id. at 10. (emphasis added).

     Kelsey fit squarely within the class of offenders the supreme
court held was entitled to relief. Kelsey was sentenced in 2010, to
two life sentences and two concurrent twenty-five-year sentences
for four nonhomicide offenses he committed when he was fifteen
years old. Id. at 6. In January 2014, after Graham but before the
new juvenile sentencing laws were enacted, Kelsey was
resentenced to concurrent sentences of forty-five years
imprisonment. Id. at 7. A majority of the supreme court concluded
that Kelsey’s forty-five-year sentence violated the Eighth
Amendment’s prohibition against cruel and unusual punishment
because it did not provide “the judicial review granted to other
defendants who, like him, were sentenced to terms that [would]
not provide them a meaningful opportunity for relief in their
respective lifetimes.” Id. at 10. However, Justice Polston, joined
by Justices Lewis and Canady, dissented, concluding that Kelsey
was not entitled to resentencing because his forty-five-year
sentence was not a de facto life sentence and he would have a
meaningful opportunity for release during his lifetime. Id. at 14.

    Next, in Johnson v. State, 215 So. 3d 1237 (Fla. 2017), the
supreme court again considered the constitutionality of a lengthy
term-of-years sentence imposed on a juvenile nonhomicide

                                6
offender. The supreme court again narrowly defined the class of
offenders entitled to relief under Graham and its prior decisions,
stating that its holding in Kelsey II applied to “juveniles whose life
sentences had been vacated pursuant to Graham, but who had not
been resentenced under the new juvenile sentencing guidelines.”
Id. at 1239. And like Kelsey, Johnson fit squarely within the
defined class of offenders the supreme court held was entitled to
relief. Johnson had originally been sentenced to six concurrent life
sentences for his convictions of armed burglary, armed
kidnapping, attempted first-degree murder, and sexual battery
using force or a weapon. Id. Johnson was resentenced pursuant to
Graham, but before the new juvenile sentencing laws were
enacted, and he was resentenced to 100 years in prison. Id. The
supreme court held that Johnson was entitled to resentencing
under the new juvenile sentencing laws, concluding that a
sentence for a juvenile nonhomicide offender (1) must not provide
for release only at the end of the sentence; (2) must include
opportunity for release through a judicial review mechanism that
considers the offender’s demonstration of rehabilitation and
maturity; and (3) must not provide for early release at a time
beyond the offender’s natural life. Id. at 1243.

    In its next juvenile sentencing decision, the supreme court
concluded that an offender originally sentenced to life
imprisonment and then resentenced to a forty-five-year prison
term was entitled to resentencing under Graham and the new
sentencing laws. Lee v. State, 234 So. 3d 562 (Fla. 2018). A
majority of the supreme court held that Lee was entitled to
resentencing because his “sentence [did] not provide him an
opportunity to obtain early release based on a demonstration of
maturity and rehabilitation before the expiration of the imposed
term.” Id. at 564.

     But again, the supreme court emphasized that Lee fit
squarely within the narrow class of juvenile nonhomicide offenders
entitled to relief under Graham:

    Lee, as was Kelsey, is serving a 40-year sentence for a
    nonhomicide crime that he committed when he was a
    juvenile. Like Kelsey, Lee was resentenced after the
    United States Supreme Court’s decision in Graham but

                                  7
    before the Florida Legislature passed chapter 2014–220.
    And, like Kelsey—and as noted in Johnson—Lee’s
    sentence does not provide him an opportunity to obtain
    early release based on a demonstration of maturity and
    rehabilitation before the expiration of the imposed term.
    Accordingly, Lee is entitled to resentencing under the
    juvenile sentencing provisions in chapter 2014–220.

Id. at 564; but see id. at 564-65. (Polston, J, dissenting) (arguing
that Lee’s forty-year sentence was not a life sentence nor a de facto
life sentence; thus, it did not violate Graham, and he was not
entitled to resentencing). In discussing its decision in Kelsey II, a
majority of the supreme court explained that Kelsey was entitled
to resentencing for two reasons: (1) his life sentence had been
vacated pursuant to Graham and (2) he was not resentenced
pursuant to the new juvenile sentencing laws. Id. at 564.

     The supreme court’s most recent opinion addressing
sentencing for juvenile nonhomicide offenders is Morris v. State,
2018 WL 2146786 (Fla. May 10, 2018). Morris was sentenced to
thirty years’ imprisonment for attempted felony murder and to
fifteen years’ imprisonment for attempted armed robbery. Id. at
1. Thus, Morris was not within the class of juvenile nonhomicide
offenders entitled to resentencing under Henry, Kelsey II, Johnson,
and Lee. However, the supreme court held that Morris was
entitled to be resentenced under the new juvenile sentencing laws.
Id. at 3. Three justices joined in the opinion ordering resentencing,
with one justice concurring only in result. Id. at 3. The remaining
justices joined in a dissent authored by Justice Lawson, concluding
that Morris was not entitled to resentencing pursuant to Graham
because he did not receive a sentence of life imprisonment or the
functional equivalent of life. Id. at 4.

                                III.

    The State argues that Hart is not entitled to resentencing
because the narrow class of offenders entitled to relief under
Henry, Kelsey II, Johnson, and Lee is limited to those defendants
whose life sentences were vacated pursuant to Graham and who
were resentenced before July 1, 2014. Nor is he entitled to
resentencing under Graham. We agree.

                                 8
     In Henry, Kelsey II, Johnson, and Lee, the Florida Supreme
Court very narrowly defined the class of offenders entitled to
resentencing under the new juvenile resentencing laws;
specifically, those defendants who originally received life
sentences and who were resentenced after their sentences were
vacated pursuant to Graham but before the July 1, 2014 effective
date of the new juvenile sentencing laws. 2 The defendants in
Henry, Kelsey II, Johnson, and Lee fell squarely within the class
definition. Hart does not. Although Hart was sentenced to life
imprisonment in 2009, Hart’s convictions and life sentences were
vacated on grounds that the joinder of his trials involving the two
victims was improper, and he was granted a new trial. Hart I, 70
So. 3d at 620. On remand in 2013, Hart entered a negotiated plea
and agreed to be sentenced to an aggregate term of fifty years’
imprisonment. Thus, for purposes of our analysis, we look to the
sentence imposed for his 2013 convictions, not the life sentences
imposed for his vacated 2009 convictions. Applying the definition
of the class of offenders entitled to relief under Henry, Kelsey II,
Johnson, and Lee, we conclude Hart is not entitled to relief because
he was never resentenced pursuant to Graham.

    Nor can Hart demonstrate that his fifty-year aggregate
sentence violates Graham. In order to qualify for resentencing
under the new juvenile sentencing laws, Hart was required to
demonstrate that his fifty-year aggregate sentence violates the

    2 Although the supreme court in Morris granted relief to a
defendant outside the class of offenders it had defined in Henry,
Kelsey II, Johnson, and Lee, the decision in Morris does not control
the outcome in this case because only three justices concurred in
the opinion. “Under the Florida Constitution, both a binding
decision and a binding precedential opinion are created to the
extent that at least four members of the Court have joined in an
opinion and decision.” Lee v. State, 854 So. 2d 709, 716 (Fla. 2d
DCA 2003) (quoting Santos v. State, 629 So. 2d 838, 840 (Fla.
1994)). Thus, we are compelled to follow the supreme court’s
precedents in Henry, Kelsey II, Johnson, and Lee. See Caruthers v.
State, 232 So. 3d 441 (Fla. 4th DCA 2017).


                                 9
Eighth Amendment and Graham. See Henry, 175 So. 3d at 679.
He cannot do so. Hart was not sentenced to a life sentence or a de
facto life sentence. Consistent with the requirements of Graham,
Hart’s fifty-year sentence affords him a meaningful opportunity for
release during his natural life. See Davis v. State, 214 So. 3d 799,
799-800 (Fla. 1st DCA 2017) (holding that defendant’s thirty-five-
year aggregate sentence did not violate Graham or require
resentencing under the new juvenile sentencing laws); Katwaroo
v. State, 237 So. 3d 446 (Fla. 5th DCA 2018) (Berger, J.,
concurring) (concurring in light of binding precedent, but
observing that Katwaroo’s thirty-year sentence did not violate
Graham).

     Nonetheless, Hart argues that denying him relief would be
inconsistent with the supreme court’s decision granting relief to
the defendant in Smith v. State, 2016 WL 7217234 (Fla. Dec. 13,
2016), quashing Smith v. State, 119 So. 3d 530 (Fla. 5th DCA
2013). In Smith, a decision rendered after the remand in Hart’s
case, the supreme court quashed a Fifth District decision that
affirmed a forty-year sentence imposed on a juvenile nonhomicide
offender who had not previously been sentenced to life
imprisonment. In rejecting Hart’s arguments, we make two
observations. First, the supreme court’s remand in Smith
explicitly required that Smith’s case be further remanded for
resentencing and cited several of the supreme court’s prior
decisions:

    [T]he Fifth District Court of Appeal’s decision in this case
    is quashed, and this matter is remanded for resentencing
    in light of the decisions Kelsey v. State, 2016 WL 7159099
    (Fla. Dec. 8, 2016); Henry v. State, 175 So. 3d 675 (Fla.
    2015); and Gridine v. State, 175 So. 3d 672 (Fla. 2015).

Smith, 2016 WL 7217234 (Fla. Dec. 13, 2016).

     In its remand of Hart’s case to this Court, the supreme court
did not expressly require resentencing and cited only Kelsey II in
its decision. Hart IV, 2017 WL 836804 (Fla. Mar. 3, 2017) (“[T]he
First District Court of Appeal’s decision in this case is quashed,
and that this matter is remanded in light of our decision in
Kelsey.”). Had the supreme court intended for this Court to further

                                10
remand Hart’s case for resentencing, it could have so ordered in its
remand instructions. See Smith v. State, 2017 WL 2709772 (Fla.
June 23, 2017) (“[T]his matter is remanded to the district court
with instructions that the case be further remanded for
resentencing.”).

     Second, Hart suggests that the supreme court’s decisions in
Henry and Kelsey II require that juvenile nonhomicide offenders
serving a sentence longer than twenty years be resentenced and
afforded the judicial review mechanism provided in the new
juvenile sentencing laws. We reject this interpretation of Henry
and Kelsey II. See Montgomery v. State, 230 So. 3d 1256, 1265 (Fla.
5th DCA 2017) (Eisnaugle, J., concurring in result only) (“Kelsey
did not hold that all juvenile sentences longer than twenty years
are unconstitutional unless they include chapter 2014-220’s review
mechanism”). A majority of the supreme court has never held that
sentences for juvenile nonhomicide offenders that exceed twenty
years violate Graham and that such offenders are entitled to
resentencing under the new juvenile sentencing laws. See
Abrakata v. State, 2017 WL 24657 (Fla. Jan. 3, 2017) (denying
review of Abrakata’s twenty-five-year sentence for attempted
second-degree murder). Nor has a majority of the supreme court
so vastly expanded the class of offenders entitled to resentencing
under Graham and the new juvenile sentencing laws. Accordingly,
we decline Hart’s invitation to further expand the class of juvenile
nonhomicide offenders entitled to resentencing under Graham.
Taken to its logical conclusion, Hart’s construction of the supreme
court’s decisions in Henry and Kelsey II would entitle every
juvenile nonhomicide offender serving a sentence exceeding
twenty years to resentencing on grounds that those sentences
violate the Eighth Amendment prohibition against cruel and
unusual punishment. Graham does not compel such a result, nor
does any binding decision from the supreme court.

    Because Hart’s aggregate fifty-year sentence does not violate
Kelsey, Graham, or the Eighth Amendment’s prohibition against
cruel and unusual punishment, we affirm.

    AFFIRMED.

ROBERTS and KELSEY, 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.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore,
Assistant Attorney General, Tallahassee, for Appellee.




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