       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                      ANTHONY JEROME JONES,
                            Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-3589

                          [September 18, 2019]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge;
L.T. Case No. 561990CF002729A.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

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

PER CURIAM.

   Anthony Jerome Jones appeals a trial court’s order that vacated a prior
resentencing order and denied his motion for postconviction relief. We
reverse and remand because the trial court lacked jurisdiction to vacate
the resentencing order. See Taylor v. State, 140 So. 3d 526 (Fla. 2014);
Simmons v. State, 44 Fla. L. Weekly D1301 (Fla. 1st DCA May 16, 2019).

   Jones was sentenced in 1992 for first-degree felony murder that he
committed while a juvenile. In 1994, the trial court resentenced him to
include the possibility for parole.

   In 2017, Jones moved for resentencing based on Atwell v. State, 197
So. 3d 1040 (Fla. 2016), and its interpretation of the United States
Supreme Court’s Graham/Miller progeny. Graham v. Florida, 560 U.S. 48
(2010) (holding that it was a violation of the Eighth Amendment to
sentence a juvenile to life imprisonment without the possibility of parole
for a nonhomicide offense); Miller v. Alabama, 567 U.S. 460, 479 (2012)
(extending Graham’s reasoning to juveniles sentenced to a mandatory term
of life without parole for a homicide offense).

   The trial court entered the initial resentencing order because Atwell
held as unconstitutional a juvenile homicide offender’s mandatory life
sentence despite the possibility of parole. Atwell reasoned that Florida’s
parole system failed to provide for individual consideration of a juvenile’s
maturity and rehabilitation. Atwell, 197 So. 3d at 1048-50. The State did
not appeal, seek rehearing, or move to stay that resentencing order.
Rather, more than a year later, the State objected to the resentencing
based on changes in the law holding that a life sentence with eligibility for
parole after twenty-five years does not offend Miller or Graham. Franklin
v. State, 258 So. 3d 1239 (Fla. 2018); State v. Michel, 257 So. 3d 3 (Fla.
2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1401, 203 L. Ed.2d 630
(2019). The trial court agreed, vacated its initial resentencing order, and
denied Jones’ motion for post-conviction relief.

   The First District recently quashed a comparable order concluding that
the trial court lacked jurisdiction to rescind its first “final” resentencing
order. Simmons, 44 Fla. L. Weekly at 1301-02. The order granting
resentencing became final when neither party moved for rehearing or
appealed that order. Id. at 1301 (citing Taylor, 140 So. 3d at 528-29;
Slocum v. State, 95 So. 3d 911, 912 (Fla. 1st DCA 2012); Jordan v. State,
81 So. 3d 595, 596 (Fla. 1st DCA 2012)).

   We agree and quash the order on appeal, and remand with directions
that the trial court reinstate the order granting resentencing. As outlined
in Simmons, the trial court should then resentence Jones to a lawful
sentence. Id. at 1302. Moreover, as Judge Bilbrey recognized in his
concurring opinion in Simmons, the “decisional law effective at the time of
the resentencing applies.” Id. (quoting State v. Fleming, 61 So. 3d 399,
400 (Fla. 2011)); 1 see also Bellay v. State, No. 4D17-3866, 2019 WL
2998536 (Fla. 4th DCA July 10, 2019) (re-imposing life sentence pursuant
to Atwell resentencing). While Jones presents substantive challenges to
the current decisional law, we decline to consider those arguments.

    Reversed and remanded.

WARNER, KLINGENSMITH and KUNTZ, JJ., concur.

                             *         *         *


1
 Judge Bilbrey added his view that the trial court could legally impose the same
sentence. Id.


                                       2
Not final until disposition of timely filed motion for rehearing.




                               3
