      IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                     October 19, 2016


AMER ALI EJAK,                   )
                                 )
           Appellant,            )
                                 )
v.                               )               Case No. 2D13-5332
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )


BY ORDER OF THE COURT:


       Appellant's motion for rehearing, written opinion and/or certification is granted to

the extent that we substitute the following opinion for the per curiam affirmance issued

April 29, 2016. The motion is denied in all other respects. No further motions for

rehearing will be entertained.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



AMER ALI EJAK,                   )
                                 )
           Appellant,            )
                                 )
v.                               )                    Case No.     2D13-5332
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed October 19, 2016.

Appeal from the Circuit Court for
Hillsborough County; Emmett Lamar
Battles, Judge.

Howard L. Dimmig, II, Public Defender,
and Ivy R. Ginsberg, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General,
Tampa, for Appellee.



KELLY, Judge.

              Amer Ali Ejak was seventeen years old when a jury found him guilty of

first-degree murder. The trial court sentenced Ejak to life in prison without the

possibility of parole on September 3, 2013. The date is significant because Ejak's

sentence was imposed after the United States Supreme Court decided Miller v.
Alabama 1—which held that it was unconstitutional to sentence a juvenile convicted of

homicide to a mandatory life sentence without the possibility of parole—but before the

Florida Legislature enacted section 921.1401(2), Florida Statutes (2014), to bring

Florida's sentencing scheme in line with Miller. Faced with sentencing Ejak at a time

when Florida had no valid sentencing statute for juveniles convicted of first-degree

murder, the trial court conducted a sentencing hearing designed to comport with the

dictates of Miller and then sentenced Ejak to life without the possibility of parole.

              While this appeal was pending, the Florida Supreme Court decided

Horsley v. State, 160 So. 3d 393 (Fla. 2015), which held that chapter 2014-220, Laws of

Florida, applies to all juvenile offenders whose sentences are unconstitutional under

Miller. Id. at 409. Ejak filed a rule 3.800(b)(2) motion to correct sentencing error citing

Horsley and arguing that he was entitled to a new sentencing hearing in accordance

with the procedures outlined in chapter 2014-220, Laws of Florida, which are codified in

sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014). The trial court

granted the motion in part. As required by section 775.082(1)(b)(3), it made a written

finding that Ejak was eligible for a sentence review hearing under section

921.1402(2)(a). However, it denied the motion to the extent it requested a new

sentencing hearing under section 921.1401(2). On appeal, Ejak argues the trial court

erred in not conducting a new sentencing hearing. We disagree. 2




              1
               Miller v. Alabama, 132 S. Ct. 2455 (2012).
              2Ejak  raises several issues in this appeal, none of which have merit. We
originally issued a per curiam affirmance, but granted his motion for rehearing, written
opinion, and/or certification in part to address his argument that he was entitled to be
resentenced. In all other respects his motion was denied.


                                            -2-
              The question in Horsley was what remedy was appropriate for sentences

that were unconstitutional under Miller but which were imposed for crimes committed

before the effective date of the new sentencing scheme. The supreme court stated its

choice of remedy was driven by a desire to fashion a remedy that was consistent with

legislative intent and Miller. See Horsley, 160 So. 3d at 405-06. The remedy it chose—

application of the new law—would provide juveniles with individualized consideration

before sentencing and, for most juveniles, subsequent judicial review of their sentences.

See id. at 408. Ejak received both.

              Unlike Horsley, Ejak was sentenced after Miller was decided. The trial

court recognized Miller required individualized consideration, and it conducted a

sentencing hearing specifically intended to comport with the requirements of Miller. Its

sentencing order addressed the factors spelled out in Miller, which were later

incorporated into section 921.1401(2). Ejak argues the trial court did not consider all

the statutory factors; however, a review of the transcript of the sentencing hearing and

the trial court's sentencing order show otherwise.

              The trial court's order fully and carefully set out its findings, and we

conclude it addressed all the factors described in section 921.1401(2), to the extent

each of those factors was applicable. At sentencing, Ejak—unlike Horsley—received

the individual consideration required by Miller. Thus, his life sentence was not

unconstitutional under Miller, and absent an unconstitutional sentence under Miller, he

was not entitled to a new sentencing hearing under section 921.1401(2). We also note

that to the extent Horsley can be read to say that the Constitution requires that juveniles

sentenced to life must be afforded an opportunity for subsequent judicial review of their




                                            -3-
sentences, the trial court recognized this and, as required by section 775.082(1)(b)(3),

made a written finding that Ejak was eligible for sentence review under section

921.1402(2). Ejak received everything he was constitutionally or statutorily entitled to

and, accordingly, we affirm the trial court's order denying his rule 3.800(b)(2) motion to

correct sentencing error.

              Affirmed.




WALLACE and BLACK, JJ., Concur.




                                           -4-
