        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         JACKIE S. BURGER,
                             Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D14-4886

                         [December 13, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. 03-2674 CF10A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   After he was sentenced to life in prison for nonhomicide offenses he
committed as a juvenile, Jackie Burger was granted resentencing
pursuant to Graham v. Florida, 560 U.S. 48 (2010). He appeals the
sentence imposed at resentencing: fifty-five years in prison followed by
terms of supervision. We agree with Burger that the sentence does not
comport with Graham, and we reverse and remand for resentencing.
Based on our reversal, Burger’s ineffective assistance of counsel
argument is moot.

   In Graham, 560 U.S. at 75, the United States Supreme Court held
that Florida’s practice of sentencing juvenile offenders to life
imprisonment for nonhomicide crimes without “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation” violates the Eighth Amendment to the United States
Constitution. In response to Graham, “[i]n 2014, the Legislature passed
chapter 2014-220, Laws of Florida, which provided judicial review for
juvenile offenders who were tried as adults and received more than 20
years’ incarceration, with exceptions.” Johnson v. State, 215 So. 3d
1237, 1239 (Fla. 2017). Chapter 2014-220, Laws of Florida, is codified
in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

   Recently, in the wake of the new sentencing statutes and opinions
interpreting Graham, the Florida Supreme Court summarized the
juvenile sentencing landscape in Florida:

      [W]e must ensure that a juvenile nonhomicide offender does
      not receive a sentence that provides for release only at the
      end of a sentence (e.g. a 45-year sentence with no provision
      for obtaining early release based on a demonstration of
      maturity and rehabilitation before the expiration of the
      imposed term . . . .). Secondly, we must ensure that a
      juvenile nonhomicide offender . . . does not receive a
      sentence which includes early release that is not based on a
      demonstration of rehabilitation and maturity (i.e. gain time
      or other programs designed to relieve prison overpopulation).
      Last, we must ensure that a juvenile nonhomicide offender .
      . . does not receive a sentence that provides for early release
      at a time beyond his or her natural life (e.g. a 1,000-year
      sentence that provides parole eligibility after the offender
      serves 100 years). To qualify as a “meaningful opportunity
      for early release,” a juvenile nonhomicide offender’s sentence
      must meet each of the[se] three parameters . . . .

Johnson, 215 So. 3d at 1243.

   Burger’s sentence contains no provision for obtaining early release
based on a demonstration of maturity and rehabilitation before the
expiration of the imposed term.         Therefore, it violates the Eighth
Amendment. Additionally, the trial court did not sentence Burger under
the new sentencing scheme for nonhomicide juvenile offenders, as it
believed that the statutes did not apply to Burger based on the date of
his offense. We find this to be erroneous. See Kelsey v. State, 206 So.
3d 5, 6, 8 (Fla. 2016) (finding that defendant whose nonhomicide crimes
were committed prior to the effective date of chapter 2014-220, and
whose sentence violated Graham, was entitled to resentencing under the
provisions of chapter 2014-220); Horsley v. State, 160 So. 3d 393, 405
(Fla. 2015) (deciding that chapter 2014-220, Laws of Florida, should be
applied to “all juvenile offenders whose sentences are unconstitutional
under Miller [v. Alabama, 567 U.S. 460 (2012)],” even though the statutes
contain a prospective effective date).

   We therefore reverse and remand for resentencing under the

                                    2
provisions of chapter 2014-220, Laws of Florida.

   Reversed and remanded for resentencing.

GROSS and KLINGENSMITH, JJ., concur.

                          *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                   3
