         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1210
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LOUIS ANTHONY MCCRAE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

                         March 7, 2019


WINSOR, J.

     In 2003, seventeen-year-old Louis McCrae shot into a crowd,
killing Jackson Blakely. A jury convicted McCrae of second-
degree murder, the judge sentenced him to thirty years, and this
court affirmed. McCrae v. State, 908 So. 2d 1095 (Fla. 1st DCA
2005). McCrae later filed a postconviction motion, alleging that
the Florida Supreme Court’s subsequent Horsley v. State decision
entitles him to a new sentence. 160 So. 3d 393 (Fla. 2015). The
trial court denied relief, and we affirm.

    Years after McCrae’s conviction, the United States Supreme
Court announced in Graham v. Florida that the Eighth
Amendment precludes life-without-parole sentences for juveniles
who committed nonhomicide offenses. 560 U.S. 48, 75 (2010).
Then, in Miller v. Alabama, the Court decided that the Eighth
Amendment also precludes mandatory life sentences for
juveniles, including those guilty of homicide. 567 U.S. 460, 465
(2012). Responding to these decisions, the Florida Legislature
established a new juvenile sentencing scheme. See Ch. 2014-220,
Laws of Fla.; see also Horsley, 160 So. 3d at 395. Although the
new legislation had a 2014 effective date, the Florida Supreme
Court determined that the new legislation would apply “to all
juvenile offenders whose sentences are unconstitutional under
Miller.” Horsley, 160 So. 3d at 409. Therefore, juveniles whose
original sentences were inconsistent with Miller are now entitled
to a new sentence under the new statute. Id. Likewise for
juveniles whose original sentences were inconsistent with
Graham. Henry v. State, 175 So. 3d 675, 680 (Fla. 2015).

     These developments do not help McCrae because his original
sentence—thirty years—was not inconsistent with Graham or
Miller. It was not inconsistent with Graham because this was a
homicide offense and, at any rate, there was no life sentence—de
facto or otherwise. Indeed, McCrae will still be in his forties when
released. See, e.g., Davis v. State, 214 So. 3d 799 (Fla. 1st DCA
2017) (rejecting Graham challenge to 35-year sentence);
Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015)
(rejecting Graham challenge because “Appellant will be in his
early forties when he is released from prison”), rev. denied, SC15-
1325 (Fla. Jan. 3, 2017); Austin v. State, 127 So. 3d 1286, 1287
(Fla. 1st DCA 2013) (upholding 45-year sentence). And similarly,
the sentence is not inconsistent with Miller because there was no
life sentence, mandatory or otherwise. See Davis, 214 So. 3d at
799; see also Landrum v. State, 192 So. 3d 459, 460 (Fla. 2016)
(applying Miller to discretionary life sentence for second-degree
murder). Without an unconstitutional sentence to start with,
McCrae is not entitled to resentencing under the new statute. See
Abrakata, 168 So. at 252 (“[A]bsent a violation of Graham, there
is no legal basis to retroactively apply section 921.1402 (or any
other provision of the juvenile sentencing legislation enacted in
2014) to the 2011 offense in this case.”); cf. Kelsey v. State, 206
So. 3d 5, 8 (Fla. 2016) (holding new sentences under new statutes
appropriate for “all juveniles who have sentences that violate
Graham”); Henry, 175 So. 3d at 680 (affording resentencing
under new statutes “[b]ecause we have determined that Henry’s

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sentence is unconstitutional under Graham”); Horsley, 160 So. 3d
at 395 (affording resentencing under new law to those “whose
sentences are unconstitutional in light of Miller”).

     In arguing otherwise, McCrae points to Thomas v. State, 177
So. 3d 1275 (Fla. 2015) (table), an unpublished, one-paragraph
Florida Supreme Court decision. In that decision, the court
quashed this court’s decision and directed resentencing under the
new law, citing Horsley. Id. In the opinion quashed, this court
had affirmed concurrent thirty- and forty-year sentences for
armed robbery and first-degree murder. Thomas v. State, 135 So.
3d 590, 590 (Fla. 1st DCA 2014). Unlike McCrae, however, the
defendant in Thomas was resentenced after Miller, and our now-
quashed decision was affirming his new sentence. Id. This was in
an era when the appropriate remedy for Miller violations was
uncertain, and before Horsley announced that the remedy must
be resentencing under the new law. 160 So. 3d at 401 (noting that
courts had not found consensus on how to address Miller
violations and announcing new rule). Therefore, the Thomas
decision on which McCrae relies is best read as rejecting the
remedy this court approved for the earlier Miller violation. That
remedy was unquestionably inconsistent with the remedy
Horsley later dictated, so it is unsurprising that the Florida
Supreme Court commanded another resentencing in Thomas. In
McCrae’s case, by contrast, there was no Miller violation to start
with, so there is no remedy to consider.

     It is perhaps somewhat ironic that McCrae might have been
better off with a life sentence at the outset, rather than only
thirty years. A life sentence for McCrae’s second-degree murder
likely would have led to resentencing under Miller, as it did in
Landrum, 192 So. 3d at 460. * And resentencing under the new

    *  We say “likely,” because the supreme court acknowledged
in Landrum “the possibility that a sentencer could have exercised
discretion under [the former statutes] in a manner that
demonstrated the sentencer considered the factors Miller has
since deemed constitutionally significant—and [that] the
resulting sentence would therefore not violate Miller.” 192 So. 3d
at 469. It concluded, though, that this did not happen in that
case. Id.

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juvenile-sentencing law would have meant McCrae would be
eligible for a sentence review after twenty-five years.
§ 921.1402(2), Fla. Stat. We also note that in Landrum, the
supreme court relied on the fact that it would seem unfair to
grant new sentences for first-degree murder (which carried
mandatory life sentences) but not for second-degree murder
(which allowed only discretionary life sentences). 192 So. 3d at
468. But it also relied on the fact that the sentencing court did
not conduct the type of review Miller contemplated, id. at 469,
and it certainly did not hold that any juvenile who might benefit
from the new juvenile sentencing scheme must be resentenced.
Unless and until the Florida Supreme Court announces that
every juvenile defendant is entitled to a sentence under the new
laws—regardless of when the defendant was sentenced or
whether the original sentence violated Graham or Miller—we
will follow the rule that resentencing only applies when there
was a Graham or Miller violation. Cf. Hart v. State, 255 So. 3d
921, 928 (Fla. 1st DCA 2018); Abrakata, 168 So. 3d at 252.

    AFFIRMED.

LEWIS and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Louis Anthony McCrae, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




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