       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 11, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D16-1604
                           Lower Tribunal No. 79-1174
                              ________________


                             Jeffrey L. Vennisee,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Jason E. Bloch, Judge.

      Jeffrey L. Vennisee, in proper person.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.


      ROTHENBERG, C.J.
      Jeffrey L. Vennisee (“Vennisee”) appeals the denial of his motion for

postconviction relief. Vennisee, who was a juvenile when he committed a murder

on December 10, 1998, was indicted for first-degree murder. On March 26, 1979,

Vennisee pled guilty to second-degree murder and was sentenced to life with the

possibility of parole. Vennisee 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), and that he is entitled to a

resentencing hearing and to be resentenced pursuant to chapter 2014-220, Laws of

Florida, § 1. For the reasons that follow, we affirm the trial court’s order denying

Vennisee’s motion for postconviction relief.

                  The Evolving Juvenile Sentencing Case Law

      In Roper v. Simmons, 543 U.S. 551 (2005), the United States Supreme

Court held that a sentence of death for a crime committed by a juvenile violates the

Eighth Amendment’s prohibition against cruel and unusual punishment.             Five

years later, the United States Supreme Court addressed whether a life sentence

without the possibility of parole imposed upon a juvenile who committed a non-

homicide offense was also violative of the Eighth Amendment in Graham v.

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




                                          2
      Graham was sixteen when he committed an armed burglary and an

attempted armed robbery. Based on a negotiated plea, Graham pled guilty to the

charges, adjudication was withheld, and Graham was placed on probation. Less

than six months after being released from custody, Graham, while still a juvenile,

committed an armed home invasion robbery. Graham, 560 U.S. at 54-55. After

conducting a hearing, the trial court found that Graham had violated his probation,

adjudicated him guilty of the prior armed burglary and attempted armed robbery,

and imposed a sentence of life imprisonment for the armed burglary and a fifteen-

year sentence for the attempted armed robbery. Id. at 57. Because Florida had

abolished the parole system, a life sentence provided no possibility of release

absent the grant of executive clemency. See § 921.002(1)(c), Fla. Stat. (2003).

The United States Supreme Court concluded that the life without the possibility for

parole sentence that Graham received was akin to a death sentence in that the

forfeiture of Graham’s life was irrevocable—that good behavior and character

improvement were immaterial as he must remain in prison for the remainder of his

life. Graham, 560 U.S. at 69-70. Thus, the United States Supreme Court found that

Graham’s life sentence violated the Eighth Amendment and reversed.

      It is important to note, however, that while the Graham Court held that a life

sentence without the possibility for parole imposed upon a juvenile for a non-

homicide offense violates the Eighth Amendment, the Court did not require that


                                         3
the sentence imposed guarantee the juvenile offender’s ultimate release from

incarceration. In fact, the Court stated the opposite.

       A State is not required to guarantee eventual freedom to a juvenile
       offender convicted of a nonhomicide crime. What the State must do,
       however, is give defendants like Graham some meaningful
       opportunity to obtain release based on demonstrated maturity and
       rehabilitation. . . . It bears emphasis, however, that while the Eighth
       Amendment prohibits a State from imposing a life without parole
       sentence on a juvenile nonhomicide offender, it does not require the
       State to release that offender during his natural life. Those who
       commit truly horrifying crimes as juveniles may turn out to be
       irredeemable, and thus deserving of incarceration for the duration of
       their lives. The Eighth Amendment does not foreclose the possibility
       that persons convicted of nonhomicide crimes committed before
       adulthood will remain behind bars for life. It does prohibit States
       from making the judgment at the outset that those offenders never will
       be fit to reenter society.

Id. at 75.

       Two years after addressing life sentences without the possibility of parole

imposed upon juveniles who commit non-homicide offenses in Graham, the Court

addressed the imposition of life without parole sentences imposed upon juveniles

who commit homicide offenses in Miller. Although the United States Supreme

Court did not prohibit life sentences for juveniles who commit homicide offenses,

it held that mandatory life sentences without the possibility of parole which do not

take into account the defendant’s “age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences,” are

unconstitutional. Miller, 567 U.S. at 477. “We therefore hold that the Eighth


                                          4
Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” Miller, 567 U.S. 479. The Court,

however, did not issue a categorical bar for life without parole sentences for

juvenile offenders. “Because [our] holding is sufficient to decide these cases, we

do not consider Jackson’s and Miller’s alternative argument that the Eighth

Amendment requires a categorical bar on life without parole for juveniles . . . .”

Id. at 479.

      Thus under Graham and Miller, no juvenile offender may be sentenced to a

mandatory life sentence without the possibility of parole, regardless of whether

the offense is a homicide or a non-homicide offense. Another important decision

was also made by the United States Supreme Court in Miller. Besides prohibiting

mandatory life sentences without the possibility of parole, the Court held that

juvenile offenders are constitutionally entitled to individualized sentencing at

which the judge or jury will have the opportunity to consider mitigating

circumstances, including the offender’s age and the circumstances attendant to it,

such as immaturity, impetuosity, and the failure to appreciate the consequences.

Miller, 567 U.S. at 776-77.

      In Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015), the Florida Supreme

Court concluded that it was patently unfair to treat similar juvenile offenders

differently based solely on when their cases were decided. Thus, the Court held


                                        5
that Graham and Miller must be applied retroactively to juvenile offenders’

sentences that were final when these decisions were issued.

      Also in 2015, the Florida Supreme Court issued its opinion in Henry v.

State, 175 So. 3d 675, 680 (Fla. 2015), which extended the Roper and Graham

conclusion—that juvenile life without parole sentences for non-homicide offenses

violates the Eighth Amendment—to term-of-years sentences that do not afford any

meaningful opportunity to obtain release based on the offender’s demonstrated

maturity and rehabilitation. Because the defendant in Henry, who was a juvenile

when he committed several non-homicide offenses, received an aggregate sentence

totaling ninety years, which required that he remain imprisoned until he was at

least ninety-five years old with no opportunity to be considered for an earlier

release, the Florida Supreme Court held that his sentence was unconstitutional

under Graham, and that Henry must be resentenced under the new juvenile

sentencing legislation enacted by the Florida Legislature in 2014 (Chapter 2014-

220, Laws of Florida). See also Gridine v. State, 175 So. 3d 672, 674-75 (Fla.

2015) (holding that a seventy-five-year sentence for a juvenile who was convicted

of an attempted murder was unconstitutional because it failed to provide for a

meaningful opportunity for early release).

      In Lawton v. State, 181 So. 3d 452, 453 (Fla. 2015), the Florida Supreme

Court applied the prohibition of life sentences without the possibility of parole for


                                         6
juveniles convicted of non-homicide offenses even when the juvenile commits a

homicide during the same criminal episode. In Kelsey v. State, 206 So. 3d 5 (Fla.

2016), the Florida Supreme Court also held that the trial court must apply and

comply with the provisions of Chapter 2014-220 for those juvenile offenders who

were convicted of non-homicide offenses; initially received a life sentence for the

non-homicide offense(s); were resentenced to a term-of-years sentence pursuant to

Graham because the sentence violated the Eighth Amendment; and received a new

sentence that is longer than twenty years.

      Consistent with this historical case law evolution regarding the sentencing of

juvenile offenders, the Florida Supreme Court held that a mandatory life sentence,

even with the possibility of parole after the juvenile offender serves twenty-five

years imposed for a homicide offense, is unconstitutional. Atwell v. State, 197 So.

3d 1040 (Fla. 2016). The Florida Supreme Court’s extension of Miller in Atwell

(which had only found that mandatory life sentences without the possibility of

parole for juveniles convicted of a homicide were unconstitutional), was based on

the Florida Supreme Court’s conclusion that the parole system in effect at the time

Atwell was sentenced was the “practical equivalent” of a life sentence without the

possibility of parole because Atwell’s presumptive parole release date had recently

been set to 2130, which would be at age 156, thus far exceeding Atwell’s life

expectancy. Id. at 1044.


                                             7
      We summarize the evolving case law as follows. Mandatory life sentences,

with or without the possibility of parole for juveniles convicted of homicide and

non-homicide offenses are unconstitutional under Graham, Miller, and Atwell.

Sentences for non-homicide offenses which do not provide for a meaningful

opportunity to obtain release based on a demonstration of maturity and

rehabilitation, either imposed initially or upon a resentencing, are unconstitutional

under Henry, Gridine, and Atwell. These holdings are to be applied retroactively.

Falcon, 162 So. 3d at 962. And when juveniles are resentenced for non-homicide

offenses because their original sentence violated Graham, they must be resentenced

pursuant to Chapter 2014-220. Kelsey, 206 So. 3d at 5.

                                 The Instant Case

      The offense at issue in this appeal is a homicide. Vennisee was seventeen

when the homicide was committed. Vennisee pled guilty to the homicide in 1979

and was sentenced to life in prison with the possibility of parole. Unlike the

juvenile in Miller, who received a mandatory life sentence without the possibility

of parole, and the juvenile in Atwell, whose presumptive release date provided him

with no meaningful opportunity for early release, Vennisee’s sentence provided

him with a meaningful opportunity for early release as he was released on October

8, 2002 after serving approximately twenty-three years in prison. When paroled,

Vennisee was forty years old.


                                         8
      In 2007, Vennisee violated his parole, but he was given another opportunity

to demonstrate his maturity, rehabilitation, and ability to live outside of the prison

environment. His parole was reinstated, and he was placed on community control.

Approximately four months later, Vennisee violated his community control and

parole by committing and subsequently being convicted of committing the

following felony offenses, for which he was sentenced to ten years imprisonment,

and his parole was revoked.

      Case number: F08-14834—possession of a firearm by a convicted
      felon.

      Case number: F08-10916—strong-arm robbery and planting a hoax
      bomb.

      Case number: FO8-10917—attempted strong-arm robbery and
      planting a hoax bomb.

      Case number: F08-14893—strong-arm robbery and planting a hoax
      bomb.

      On April 16, 2015, Vennisee filed a motion for postconviction relief arguing

that he is entitled to a resentencing pursuant to Miller, Graham, and Falcon for his

conviction of the homicide offense that he committed when he was a juvenile. The

trial court denied Vennisee’s motion on December 31, 2015, finding that

Vennisee’s sentence of life with parole for a homicide offense did not violate

Miller (and thus did not violate Falcon, which provides for retroactive application

of Miller). Vennisee did not initially appeal the trial court’s order denying his


                                          9
motion for postconviction relief, but on July 8, 2016, this Court granted Vennisee a

belated appeal.

      Subsequent to the issuance of the trial court’s order and during the pendency

of this appeal, the Florida Supreme Court decided Atwell (extending Miller to

include juveniles convicted of homicides and who received life sentences with the

possibility of parole). We will, therefore, analyze Vennisee’s arguments under the

most current status of the relevant law.

      As already discussed, where the Court in Miller only found that mandatory

life sentences without the possibility of parole for homicides committed by

juveniles were violative of the Eighth Amendment, since Vennisee filed his appeal,

the Florida Supreme Court extended the Miller holding to mandatory life with

parole sentences for homicide offenses in Atwell. Thus, Vennisee is entitled to the

benefit and retroactive application of Atwell.

      We conclude, as this Court, the First District Court of Appeal, and the

Fourth District Court of Appeal have already concluded in similar cases, that

because Vennisee has already been provided with a meaningful opportunity to

obtain release, was released, and violated the terms of his release by committing

new felony offenses while an adult, Miller, Graham, and Atwell are not implicated,

and Vennisee is not entitled to a resentencing because his sentence is not cruel and

unusual under the Eighth Amendment.


                                           10
      In Rooks v. State, 42 Fla. L. Weekly D1573 (Fla. 3d DCA July 12, 2017),

this Court addressed a similar situation. Rooks was convicted in 1972 for a non-

homicide offense he committed while a juvenile, and he was sentenced to life with

parole eligibility. Rooks was paroled in 1980 at the age of twenty-four after

serving eight and one-half years. In 1986, at the age of thirty, Rooks violated his

parole and was returned to prison as a parole violator. In 2006, at the age of fifty,

Rooks was again released on parole, and although he was initially charged with

violating his parole, he was not returned to prison and his parole was restored. In

2014, at the age of fifty-eight, Rooks was arrested for trafficking in heroin, and as

a result, in 2015, his parole was revoked and he was returned to prison.

      Thereafter, Rooks filed a motion to correct what he claimed was an illegal

sentence based on Graham, Miller, Henry, and Atwell. The trial court denied

Rooks’ motion, and this Court affirmed after finding that the parole system and

guidelines, under which Atwell was serving his sentence, differed from the parole

system and guidelines applicable to Rooks, as evident from the fact that Rooks was

released on parole after serving only eight and one-half years of a life sentence,

whereas Atwell’s presumptive parole release date was in 2130, at which point

Atwell would be 156 years old. Rooks, 42 Fla. L. Weekly at D1575-76. Thus,

Rooks’ sentence did not resemble a mandatory life without parole sentence in

violation of Miller or Atwell, nor an aggregate sentence that failed to provide


                                         11
Rooks with any meaningful review in violation of Henry and Atwell. Rooks, 42

Fla. L. Weekly at D1575-76.         This Court therefore concluded that neither

Graham/Miller nor Henry/Atwell were implicated, Rooks’ sentence was not illegal,

and he was not entitled to resentencing under Florida’s newly-enacted juvenile

sentencing scheme. Rooks, 42 Fla. L. Weekly at D1576.

      The First District and Fourth District Courts of Appeal reached the same

conclusion in Currie v. State, 219 So. 3d 960 (Fla. 1st DCA 2017), and Rogers v.

State, 42 Fla. L. Weekly D1493 (Fla. 4th DCA July 5, 2017), respectively. Currie

was a juvenile when he committed an armed sexual battery and was sentenced to

life in prison with the possibility of parole. Currie, 219 So. 3d at 960. When

Currie was twenty-five years old he was released on parole. He subsequently

violated his parole and was returned to prison. The First District concluded that

although Currie was a juvenile when he committed these offenses and he received

a life sentence, he was “not entitled to be resentenced because he has not received

the functional equivalent of a life sentence. He has already been released once,

and he has the potential to be released again.” Id.

      In 1972, Rogers was convicted of a robbery that he committed when he was

seventeen and sentenced to life in prison with the possibility of parole. Rogers, 42

Fla. L. Weekly at D1493. After spending seven years in prison, he was released on

parole. Id. In 1979, at the age of twenty-eight, Rogers was reincarcerated when he


                                         12
violated his parole by committing an armed robbery. Id. Rogers was released on

parole again in 1990, but reincarcerated when he violated his parole by committing

a grand theft in 1999. Id. Rogers claimed that his life sentence for a non-homicide

offense he committed as a juvenile was unconstitutional pursuant to Graham and

sought resentencing pursuant to chapter 2014-220. Id. at D1493-94. The Fourth

District concluded that because Rogers was released on parole, he could not show

a violation of the Eighth Amendment under Graham, which held that juvenile

offenders who commit non-homicide offenses do not have to be guaranteed

eventual freedom. Id. They must only be afforded a meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation. Id. As the

Fourth District noted in Rogers:

      A juvenile offender who has actually been released from a prison
      sentence has received more than what Graham requires. Rogers had
      an opportunity for release and was in fact released from prison twice
      on parole. He has not shown that his sentence violates the Eighth
      Amendment under Graham, and he is not entitled to resentencing.

Id. (footnote omitted); see also Guzman v. State, 183 So. 3d 1025, 1027 (Fla.

2016) (Pariente, J., concurring) (concluding that Guzman, who was fourteen when

he committed several non-homicide offenses, was provided an opportunity for

rehabilitation, but committed a kidnapping as an adult while on probation for the

offenses committed as a juvenile, was “removed from the purview of Graham” and

was not entitled to be resentenced); Davis v. State, 42 Fla. L. Weekly D1481, 1482


                                        13
(Fla. 5th DCA June 30, 2017) (concluding that, although Davis was seventeen

when he committed non-homicide offenses, because he was eighteen when he

violated his youthful offender sentence by committing an armed carjacking and he

received an aggregate forty-five year prison sentence for the offenses he committed

as a juvenile, he was not entitled to be sentenced under Florida’s new juvenile

sentencing scheme in order to be in compliance with Graham and Miller).

                                 CONCLUSION

      Vennisee, who committed a homicide while a juvenile, was sentenced in

1979 to life with the possibility of parole. After serving approximately twenty-

three years in prison, he was released on parole in 2002. Vennisee violated his

parole in 2007, received another chance, and then violated his parole again by

committing seven new felony offenses. His parole was revoked, and he was

returned to prison. Because Vennisee has already been provided with a meaningful

opportunity to obtain release, was released, and then was returned to prison after he

violated the terms of his release by committing new felony offenses as an adult (he

was approximately forty-five years old), we conclude that Graham, Miller, and

Atwell are not implicated, Vennisee’s sentence is not illegal, and he is not entitled

to resentencing under Chapter 2014-220. He has, in fact, received more than

Graham, Miller, and Atwell require.

      Affirmed.


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