       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                           CARL LEE BOOTH,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D10-5202

                           [September 3, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry Cohen, Judge; L.T. Case No. 2008CF016099AXX.

   Carey Haughwout, Public Defender, John Pauly and Ellen Griffin,
Assistant Public Defenders, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

   Carl Lee Booth appeals his convictions and sentences for first-degree
murder and attempted robbery. He argues that the trial court erred in
denying his motion to suppress his confession and that his mandatory
sentence to life without parole violates the dictates of Miller v. Alabama,
132 S. Ct. 2455 (2012). We affirm the trial court’s denial of Booth’s
motion to suppress without further comment. However, we reverse
Booth’s mandatory sentence to life without parole and remand for
resentencing in accordance with Miller.

    By way of background, this case involves a shooting that took place in
September 2008. The victim was killed by a single shot as he and his
friends were leaving a dance at a Boys and Girls Club. At trial, the
evidence showed that on the night of the murder, several shots were fired
from two different guns and that Booth was one of the shooters. The jury
found Booth guilty of first-degree murder and attempted robbery. At that
time, first-degree murder was punishable by death or by life without the
possibility of parole. See § 775.082(1), Fla. Stat. (2008). The trial court
could not impose the death penalty because Booth was only seventeen at
the time of the crime. See Roper v. Simmons, 543 U.S. 551, 578 (2005)
(“The Eighth and Fourteenth Amendments forbid imposition of the death
penalty on offenders who were under the age of 18 when their crimes
were committed.”). Recognizing that “[t]he law, right or wrong, leaves
this court with no real discretion,” the trial court imposed the mandatory
sentence of life without parole for Booth’s murder conviction and five
years for the attempted robbery.

   On appeal, Booth argues that his sentence to life without parole is
unconstitutional in light of the Supreme Court’s holding in Miller.1 We
agree and reverse. “Because we review [Booth’s] sentence in the context
of a constitutional violation, our review is de novo.” Guzman v. State, 68
So. 3d 295, 297 (Fla. 4th DCA 2011) (citing Zingale v. Powell, 885 So. 2d
277, 280 (Fla. 2004)).

    In Miller, the Supreme Court held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” 132 S. Ct. at 2469. Though
Miller does not completely foreclose a sentencing court’s ability to
sentence a juvenile to life without parole in homicide cases, the Court
cautioned that “appropriate occasions for . . . this harshest possible
penalty will be uncommon” and required that sentencing courts consider
“how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id.

   We recently applied Miller in Brighton v. State, 141 So. 3d 579 (Fla.
4th DCA 2014). There, the appellant was convicted of two counts of first-
degree murder and sentenced to a mandatory term of life in prison
without the possibility of parole. Id. at 580. Because the appellant was
only sixteen at the time of the offense, we held that his sentence was
unconstitutional under Miller and reversed and remanded for
resentencing. Id. at 582, 584. In so holding, we noted that:

      Miller provides little direction on what the trial court may or
      may not do regarding the differing possible sentencing
      permutations. We do know, at a minimum, that the trial
      court may sentence a juvenile defendant to life without

    1   Miller applies to Booth’s case because it was decided while this appeal
was pending. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (quoting
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)) (“When a decision of this Court
results in a ‘new rule,’ that rule applies to all criminal cases still pending on
direct review.”).

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      parole where the trial court has considered all the Miller
      factors “should the court upon reconsideration deem such
      sentence justified.”

Id. at 584 (quoting Daugherty v. State, 96 So. 3d 1076, 1080 (Fla. 4th
DCA 2012)).

   Our analysis in Brighton applies here. Booth was only seventeen at
the time of the offense and, therefore, his mandatory sentence to life
without parole is unconstitutional. Thus, we affirm Booth’s conviction
for first-degree murder and reverse and remand for resentencing
consistent with Miller.

    We note that since Brighton, the legislature made significant changes
to the juvenile sentencing laws to account for the Supreme Court’s
holdings in Roper and Miller. See Ch. 14–220, Laws of Fla.; see also §
775.082, Fla. Stat. (2014). For instance, section 775.082(1), Florida
Statutes, no longer mandates death or life without the possibility of
parole for juveniles convicted of first-degree murder. See § 775.082(1),
Fla. Stat. Unfortunately, the legislature did not specify how trial courts
should deal with juvenile offenders, like Booth, whose crimes occurred
before the new laws took effect. Though we recognize that our decision
in this case once again leaves the trial court with “little direction” as to
its resentencing options, our supreme court’s pending review of the Fifth
District’s decision in Horsley v. State, 121 So. 3d 1130 (Fla. 5th DCA
2013), review granted, Nos. SC13-1938, SC13-2000 (Fla. Nov. 14, 2013),
should provide further guidance on this issue.

   Affirmed in part, Reversed in part, and Remanded.

TAYLOR and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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