          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            JAMES WARTHEN,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-961

                            [February 27, 2019]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,
Judge; L.T. Case No. 501990CF016666A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant challenges an order denying his rule 3.800 motion for
resentencing on two consecutive sentences in separate and unrelated
cases, a non-homicide and a homicide. The defendant argues that his
combined term of sixty-five years violates section 921.1402 of the Florida
Statutes (2018). 1 We disagree and affirm.

    In 1990, the trial court sentenced the defendant to a fifteen and twenty-
five year term for non-homicides (shooting into a building and attempted
first degree murder with a deadly weapon). The defendant committed the
second offense, second degree murder, while he was on furlough for the
first offense. For the second degree murder, the trial court sentenced him
in 1991 to a forty-year prison term.

    The United States Supreme Court has held that any sentence imposed

1Initially,
         a trial judge granted his motion for resentencing. The State moved to
deny resentencing, and a successor judge granted that motion.
on a juvenile offender for a nonhomicide offense must provide a
“meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Graham v. Florida, 560 U.S. 48, 75 (2010).
The Court has also held that before imposing a life sentence on a juvenile
for a homicide offense, the court must “take into account how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Miller v. Alabama, 567 U.S. 460,
480 (2012).

    In response to Graham and Miller, the Florida Legislature enacted
chapter 2014–220, Laws of Florida, which has been codified in sections
775.082, 921.1401, and 921.1402, Florida Statutes. Chapter 2014–220
requires that juvenile offenders who commit offenses after July 1, 2014
receive a review hearing and an opportunity for early release after serving
fifteen, twenty, or twenty-five years depending on the crime committed and
the length of the prison sentence. Both of the defendant’s crimes were
committed prior to July 1, 2014.

    The Florida Supreme Court has held that the statutes apply
retroactively to sentences imposed before July 1, 2014 if the defendant’s
sentence violates Miller or Graham. See State v. Purdy, 252 So. 3d 723,
725 (Fla. 2018) (citations omitted); see also Franklin v. State, 258 So. 3d
1239, 1240 (Fla. 2018) (holding that a juvenile offender’s three 1,000 year
life sentences with the possibility for parole for nonhomicide crimes did
not violate the Eighth Amendment). Defendant has not demonstrated that
his combined term violates either.

   We reject his position that the consecutive prison terms for the
unrelated homicide and non-homicide offenses is an “aggregate” sentence
implicating the Eighth Amendment. Indeed, our supreme court decided
in a plurality decision that a defendant’s aggregate sentence arising from
the same case did not implicate Graham and Miller. Purdy, 252 So. 3d at
729.

   In Purdy, only one of the defendant’s two terms were subject to
statutory review. Id. at 728. Per that review he was resentenced to time
served for a murder to be followed by a probationary term, yet he remained
in prison because his 112.7-month terms for non-homicide offenses were
not reviewable. Id. at 727-28; see also Lucero v. People, 394 P.3d 1128,
1132-33 (Colo. 2017), cert. den., ––– U.S. ––––, 138 S.Ct. 641, 199 L.Ed.2d
544 (2018) (holding that Miller and Graham do not apply to aggregate
sentences; an eighty-four year sentence for sixteen non-homicide crimes



                                    2
within one case). 2

   Even assuming the statute applied to the defendant, his review hearing
would have taken place in 2010 for the non-homicide offense. However,
he completed that term in 2003, and began to serve the homicide sentence.

   For the homicide offense, the statutory review would have taken place
in 2016, twenty five years after the 1991 sentence. § 921.1402, Fla. Stat.
(2018). However, we have held that a forty year term for a homicide does
not violate Miller. See Pedroza v. State, 244 So. 3d 1128 (Fla. 4th DCA);
rev. granted, SC 18-964, 2018 WL 6433136 (Fla. Dec. 6, 2018).

    In sum, we affirm because the defendant has failed to show that his
sixty five year consecutive terms for separate homicide and non-homicide
offenses violates either Graham or Miller.

   As we have done before, we certify conflict with those cases disagreeing
with Pedroza. See Donahue v. State, 257 So. 3d 1083 (Fla. 4th DCA 2018)
(certifying conflict with Cuevas v. State, 241 So. 3d 947 (Fla. 2d DCA
2018), Blount v. State, 238 So. 3d 913 (Fla. 2d DCA 2018), Mosier v. State,
235 So. 3d 957 (Fla. 2d DCA 2017), Alfaro v. State, 233 So. 3d 515 (Fla.
2d DCA 2017), and Burrows v. State, 219 So. 3d 910 (Fla. 5th DCA 2017)).

  We also certify conflict with Katwaroo v. State, 237 So. 3d 446 (Fla. 5th
DCA 2018), and Tarrand v. State, 199 So. 3d 507 (Fla. 5th DCA 2016).

    Affirmed.


2 Lucerno explained: “Multiple sentences imposed for multiple offenses do not
become a sentence of life without parole, even though they may result in a lengthy
term of incarceration. Life without parole is a specific sentence, imposed as
punishment for a single crime, which remains distinct from aggregate term-of-
years sentences resulting from multiple convictions.” 394 P.3d at 1133. We
recognize that the Court’s denial of certiorari review is not a comment on the
case’s merits. Bottoson v. State, 824 So. 2d 115, 118-19 (Fla. 2002) (citations
omitted). We also recognize our Florida Supreme Court’s citation opinion in Walle
v. State, No. SC 12-2333, 2016 WL 5165165 (Fla. Sept. 21, 2016). The supreme
court’s citations render it unclear whether the disposition was based on the
aggregate sixty-five year sentences from one county or upon the combined ninety-
two year terms from the two separate cases from different counties. Both cited
cases concerned multiple non-homicide offenses committed within a single
episode wherein the defendants were sentenced to ninety and seventy year terms.
Id. (citing Henry v. State, 175 So. 3d 675 (Fla. 2015), and Gridine v. State, 175
So. 3d 672 (Fla. 2015)).

                                        3
CIKLIN and FORST, JJ., concur.
                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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