          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


FLOYD W. PETERSON,

               Appellant,

 v.                                                     Case No. 5D15-3799

STATE OF FLORIDA,

               Appellee.

________________________________/

Opinion filed June 10, 2016

3.800 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Robert Wesley, Public Defender, and
Carolyn Schlemmer, Assistant Public
Defender, Orlando, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bonnie Jean Parrish,
Assistant Attorney General, Daytona
Beach, for Appellee.

LAMBERT, J.

      Floyd Peterson was convicted in 2003 of burglary of a dwelling with an assault or

battery, a first-degree felony, punishable by a term of years not exceeding life in prison,

and was sentenced to serve fifty-six years in prison.1 Peterson was seventeen years old



      1   Peterson was also convicted of two other crimes which are not pertinent to this
appeal.
at the time he committed this crime and was eighteen years old when he was sentenced.2

His direct appeal was affirmed without opinion. Peterson v. State, 892 So. 2d 1056 (Fla.

5th DCA 2005).

      Presently pending before this court is Peterson’s appeal of the postconviction

court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct his

sentence. Peterson essentially argues that the fifty-six-year sentence for his nonhomicide

crime equates to a de facto life sentence in violation of the Eighth Amendment of the

United States Constitution’s prohibition against cruel and unusual punishment. 3

      In Graham v. Florida, 560 U.S. 48, 74 (2010), the United States Supreme Court

held that the Eighth Amendment forbids a sentence of life without parole for a juvenile

offender who did not commit a homicide. The Court wrote:

             A State is not required to guarantee eventual freedom to a
             juvenile offender convicted of a nonhomicide crime. What the
             State must do, however, is give [juvenile offenders] some
             meaningful opportunity to obtain release based on
             demonstrated maturity and rehabilitation. . . . It bears
             emphasis, however, that while the Eighth Amendment
             prohibits a State from imposing a life without parole sentence
             on a juvenile nonhomicide offender, it does not require the
             State to release that offender during his natural life. . . . The
             Eighth Amendment does not foreclose the possibility that
             persons convicted of nonhomicide crimes committed before
             adulthood will remain behind bars for life. It does prohibit
             States from making the judgment at the outset that those
             offenders never will be fit to reenter society.




      2Peterson committed the crime twenty days before he turned eighteen. He was
sentenced four days before he turned nineteen.

      3  The Eighth Amendment’s cruel and unusual punishment clause is made
applicable to the states by the due process clause of the Fourteenth Amendment.
Robinson v. California, 370 U.S. 660, 675 (1962) (Douglas, J., concurring).


                                            2
560 U.S. at 75. Two years later, in Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court

held that a mandatory life sentence without the possibility of parole for juvenile offenders

who commit homicides violates the Eighth Amendment.

       Subsequent to Graham, appellate courts in Florida confronted the question of

whether a lengthy term-of-years sentence imposed upon juvenile nonhomicide offenders

also violated Graham and the Eighth Amendment because these sentences, though not

actual life sentences, amounted to de facto life sentences.4 Three of the five district courts

of appeal found that Graham did not apply to lengthy term-of-years sentences. See, e.g.,

Young v. State, 110 So. 3d 931, 932–33 (Fla. 2d DCA 2013); Guzman v. State, 110 So.

3d 480, 483 (Fla. 4th DCA 2013); Henry v. State, 82 So. 3d 1084, 1089 (Fla. 5th DCA

2012). The First District Court of Appeal applied Graham on a case-by-case basis when

addressing lengthy sentences of juvenile nonhomicide offenders. See Floyd v. State, 87

So. 3d 45, 45–46 (Fla. 1st DCA 2012) (reversing consecutive forty-year sentences

because there was no meaningful opportunity for release required under Graham);

Adams v. State, 188 So. 3d 849, 851–52 (Fla. 1st DCA 2012) (reversing a sentence that

required a juvenile nonhomicide offender to serve at least fifty-eight and one-half years

because the sentence exceeded the offender’s life expectancy). The Florida Supreme

Court accepted jurisdiction in Henry to address whether the holding in Graham applied to

lengthy term-of-years sentences. Henry v. State, 107 So. 3d 405 (Fla. 2012).




       4 A de facto life sentence is defined as “one that exceeds the defendant’s life
expectancy.” Adams v. State, 188 So. 3d 849, 851 (Fla. 1st DCA 2012), review denied,
State v. Adams, No. SC12-1795, 2016 WL 234892 (Fla. Jan. 20, 2016).



                                              3
question regarding the point at which a term-of-years sentence becomes a de facto life

sentence).7

       However, in Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), the First District

Court of Appeal affirmed, after resentencing, a juvenile offender’s thirty-year sentence for

armed robbery and concurrent forty-year sentence for first-degree murder. The Florida

Supreme Court quashed this decision and remanded for sentencing in conformance with

the 2014 juvenile sentencing statutes. Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

Though Thomas involved a juvenile who committed a homicide, thereby implicating Miller

and not Graham, as noted by Judge Benton in his dissenting opinion in Kelsey, if the

constitutionality of a juvenile nonhomicide offender’s sentence is based solely on whether

the juvenile received a de facto life sentence, then, pursuant to Thomas, a juvenile

homicide offender whose forty-year sentence is invalid, and therefore entitled to

resentencing under the new juvenile sentencing law, is actually treated more favorably

than a juvenile nonhomicide offender, such as Mr. Kelsey, whose forty-five-year sentence

was affirmed as constitutional. See Kelsey, 183 So. 3d at 447 n.6 (Benton, J., dissenting).

       As evidenced by the foregoing, after Henry and Gridine, the intermediate appellate

courts have attempted to narrow the line of demarcation for when a juvenile nonhomicide

offender’s sentence becomes a de facto life sentence and, therefore, unconstitutional.




       7   In her concurring opinion, Justice Pariente explained that discharge was
appropriate because, though Guzman committed his offenses while a juvenile, he was
initially placed on probation. Guzman, 183 So. 3d at 1026 (Pariente J., concurring).
Guzman thereafter violated his probation after he turned eighteen, prompting the trial
court to revoke and terminate his probation and sentence him to sixty years in prison. Id.
Justice Pariente made clear that the only reason that Guzman’s sixty-year sentence
would not be otherwise unconstitutional under Graham was because Guzman violated
his probation and received his sixty-year sentence after he became an adult. Id. at 1027.


                                             7
       Finally, we recognize that Peterson’s judgment and sentence was final long before

the United States Supreme Court issued Graham. Recently, that Court determined that

its decision in Miller, which held that life sentences for juveniles convicted of homicide

was unconstitutional, was entitled to retroactive effect. Montgomery v. Louisiana, 136 S.

Ct. 718 (2016). The Florida Supreme Court has also held that Miller is to be applied

retroactively. Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015). We agree with our sister

courts that there is no material difference between Graham and Miller in terms of the

analysis required for retroactivity, Williams, 41 Fla. L. Weekly D508; St. Val v. State, 107

So. 3d 553, 554 (Fla. 4th DCA 2013), and expressly join these courts in concluding that

Graham is to be applied retroactively.9 Therefore, we hold that Peterson’s initial fifty-six-

year sentence was prohibited under the Eighth Amendment and direct that Peterson be

resentenced in light of the new juvenile sentencing legislation now codified at sections

775.082, 921.1401, and 921.1402, Florida Statutes.10 See Horsley, 160 So. 3d at 395.




then a fifty-six-year sentence is not a de facto life sentence. Moreover, as we raised in
Henry, it is unclear whether gain time would be a factor in this analysis. Id. If it is, and,
pursuant to section 921.002(1)(e), Florida Statutes (2002), Peterson serves only eighty-
five percent of his sentence, then his sentence is not a de facto life sentence, but then
the sixty-year sentence in Guzman, that Justice Pariente clearly inferred would be an
unconstitutional sentence, would arguably not be a de facto life sentence if Guzman’s
nine years of gain time is considered.

       9 In Weiand v. State, 129 So. 3d 434, 434–35 (Fla. 5th DCA 2013), we reversed
life sentences imposed on a juvenile nonhomicide offender in 1988 and remanded for
resentencing, impliedly concluding that Graham applied retroactively.

       10 To be clear, we are not holding or suggesting that a fifty-six-year sentence is
unwarranted, but only that whatever sentence is imposed after remand must also provide
for the statutorily required review hearing if the sentence exceeds twenty years.

                                             9
at most, would result in the juvenile being released from prison at the age of sixty-eight,

was not a de facto life sentence in violation of Graham, and thus, was constitutional.

Williams v. State, 41 Fla. L. Weekly D508 (Fla. 2d DCA Feb. 26, 2016). Also, in Kelsey

v. State, 183 So. 3d 439 (Fla. 1st DCA 2015), the First District Court of Appeal, in a 2-1

per curiam opinion, concluded that it was constrained to affirm the forty-five-year

concurrent sentences imposed upon the juvenile nonhomicide offender because the

sentences were not de facto life sentences to which Graham applies.6 Most recently, in

Collins v. State, 41 Fla. L. Weekly D1003 (Fla. 1st DCA Apr. 25, 2016), the First District

held that fifty-five-year aggregate sentences for nonhomicide crimes that the defendant

committed as a minor did not amount to a de facto life sentence. To date, the Florida

Supreme Court has not specifically answered the question of when a lengthy term-of-

years sentence becomes a de facto life sentence. See Guzman v. State, 183 So. 3d

1025, 1026 (Fla. 2016) (discharging jurisdiction and declining to address the certified




      6 The First District certified the following question to the Florida Supreme Court as
one of great public importance:

              WHETHER A DEFENDANT WHOSE INITIAL SENTENCE
              FOR A NONHOMICIDE CRIME VIOLATES GRAHAM v.
              FLORIDA,  AND  WHO    IS  RESENTENCED      TO
              CONCURRENT FORTY-FIVE YEAR TERMS, IS ENTITLED
              TO A NEW RESENTENCING UNDER THE FRAMEWORK
              ESTABLISHED IN CHAPTER 2014-220, LAWS OF
              FLORIDA?

Kelsey, 183 So. 3d at 442. The supreme court has accepted jurisdiction. Kelsey v. State,
No. SC15-2079, 2015 WL 7720518 (Fla. Nov. 19, 2015).



                                            6
question regarding the point at which a term-of-years sentence becomes a de facto life

sentence).7

       However, in Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), the First District

Court of Appeal affirmed, after resentencing, a juvenile offender’s thirty-year sentence for

armed robbery and concurrent forty-year sentence for first-degree murder. The Florida

Supreme Court quashed this decision and remanded for sentencing in conformance with

the 2014 juvenile sentencing statutes. Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

Though Thomas involved a juvenile who committed a homicide, thereby implicating Miller

and not Graham, as noted by Judge Benton in his dissenting opinion in Kelsey, if the

constitutionality of a juvenile nonhomicide offender’s sentence is based solely on whether

the juvenile received a de facto life sentence, then, pursuant to Thomas, a juvenile

homicide offender whose forty-year sentence is invalid, and therefore entitled to

resentencing under the new juvenile sentencing law, is actually treated more favorably

than a juvenile nonhomicide offender, such as Mr. Kelsey, whose forty-five-year sentence

was affirmed as constitutional. See Kelsey, 183 So. 3d at 447 n.6 (Benton, J., dissenting).

       As evidenced by the foregoing, after Henry and Gridine, the intermediate appellate

courts have attempted to narrow the line of demarcation for when a juvenile nonhomicide

offender’s sentence becomes a de facto life sentence and, therefore, unconstitutional.




       7   In her concurring opinion, Justice Pariente explained that discharge was
appropriate because, though Guzman committed his offenses while a juvenile, he was
initially placed on probation. Guzman, 183 So. 3d at 1026 (Pariente J., concurring).
Guzman thereafter violated his probation after he turned eighteen, prompting the trial
court to revoke and terminate his probation and sentence him to sixty years in prison. Id.
Justice Pariente made clear that the only reason that Guzman’s sixty-year sentence
would not be otherwise unconstitutional under Graham was because Guzman violated
his probation and received his sixty-year sentence after he became an adult. Id. at 1027.


                                             7
From the seventy-year sentence determined to be unconstitutional in Gridine, our court

has held that a sixty-year sentence is unconstitutional, while a sister court has determined

that a fifty-five year sentence is constitutional. Here, we are tasked with deciding whether

Peterson’s fifty-six year sentence is constitutional. Our review of the constitutionality of

a sentence is de novo. Abrams v. State, 971 So. 2d 1033, 1035 (Fla. 4th DCA 2008)

(citing Russ v. State, 832 So. 2d 901, 906 (Fla. 1st DCA 2002)).

       We conclude, based on the specific language in Henry and the court’s ruling in

Thomas, that the constitutionality of a juvenile offender’s lengthy term-of-years sentence

is not solely dependent on the juvenile’s life expectancy at the time of sentencing, i.e.

whether a de facto life sentence has been imposed. In its analysis of Graham, nowhere

does the court in Henry specifically state that only term-of-years sentences that

chronologically compute to de facto life sentences are unconstitutional. From Henry and

Thomas, we discern that our supreme court intends that lengthy term-of-year sentences

for these types of offenders, without a review mechanism and the opportunity for early

release, are constitutionally infirm, regardless of whether the sentence is a de facto life

sentence. Accordingly, we conclude that the court’s admonition that a constitutional

sentence is one that provides a meaningful opportunity for early release is not satisfied

simply because the juvenile may be geriatrically released from prison at some point

before the conclusion of his or her statistical or actuarial life expectancy.8



       8 As we discussed in our opinion in Henry—a myriad of diverse factors, such as
race, gender, or socioeconomic status arguably can affect an individual’s life expectancy.
Henry, 82 So. 3d at 1089. In the instant case, Peterson is an African American male. If
he serves his complete sentence, Peterson will be approximately seventy-four years old
when released from prison. Depending on which specific life expectancy table is used,
Peterson may well have received a de facto life sentence. However, for a similarly
situated white male or white female, whose statistical life expectancy is arguably longer,

                                              8
       Finally, we recognize that Peterson’s judgment and sentence was final long before

the United States Supreme Court issued Graham. Recently, that Court determined that

its decision in Miller, which held that life sentences for juveniles convicted of homicide

was unconstitutional, was entitled to retroactive effect. Montgomery v. Louisiana, 136 S.

Ct. 718 (2016). The Florida Supreme Court has also held that Miller is to be applied

retroactively. Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015). We agree with our sister

courts that there is no material difference between Graham and Miller in terms of the

analysis required for retroactivity, Williams, 41 Fla. L. Weekly D508; St. Val v. State, 107

So. 3d 553, 554 (Fla. 4th DCA 2013), and expressly join these courts in concluding that

Graham is to be applied retroactively.9 Therefore, we hold that Peterson’s initial fifty-six-

year sentence was prohibited under the Eighth Amendment and direct that Peterson be

resentenced in light of the new juvenile sentencing legislation now codified at sections

775.082, 921.1401, and 921.1402, Florida Statutes.10 See Horsley, 160 So. 3d at 395.




then a fifty-six-year sentence is not a de facto life sentence. Moreover, as we raised in
Henry, it is unclear whether gain time would be a factor in this analysis. Id. If it is, and,
pursuant to section 921.002(1)(e), Florida Statutes (2002), Peterson serves only eighty-
five percent of his sentence, then his sentence is not a de facto life sentence, but then
the sixty-year sentence in Guzman, that Justice Pariente clearly inferred would be an
unconstitutional sentence, would arguably not be a de facto life sentence if Guzman’s
nine years of gain time is considered.

       9 In Weiand v. State, 129 So. 3d 434, 434–35 (Fla. 5th DCA 2013), we reversed
life sentences imposed on a juvenile nonhomicide offender in 1988 and remanded for
resentencing, impliedly concluding that Graham applied retroactively.

       10 To be clear, we are not holding or suggesting that a fifty-six-year sentence is
unwarranted, but only that whatever sentence is imposed after remand must also provide
for the statutorily required review hearing if the sentence exceeds twenty years.

                                             9
      Perceiving the need for additional guidance from our supreme court regarding

lengthy term-of-years sentences imposed on juvenile nonhomicide offenders prior to July

1, 2014, we certify the following questions as being of great public importance:

             1.    DOES HENRY V. STATE, 175 SO. 3D 675 (FLA.
             2015), ONLY APPLY TO LENGTHY TERM-OF-YEARS
             SENTENCES THAT AMOUNT TO DE FACTO LIFE
             SENTENCES?

             2.   DOES HENRY APPLY RETROACTIVELY TO
             SENTENCES THAT WERE FINAL AT THE TIME HENRY
             WAS DECIDED?

             3.   IF HENRY ONLY APPLIES TO DE FACTO LIFE
             SENTENCES, THEN, IN DETERMINING WHETHER A
             TERM-OF-YEARS SENTENCE IS A DE FACTO LIFE
             SENTENCE, SHOULD FACTORS SUCH AS GENDER,
             RACE, SOCIOECONOMIC STATUS, AND POTENTIAL
             GAIN TIME BE CONSIDERED?

             4.  IF SO, AT WHAT POINT DOES A TERM-OF-YEARS
             SENTENCE BECOME A DE FACTO LIFE SENTENCE?

      We also certify conflict with Collins, 41 Fla. L. Weekly D1003, which held that a

juvenile nonhomicide offender’s aggregate fifty-five-year prison sentence is valid.

      SENTENCE VACATED; REMANDED FOR RESENTENCING; QUESTIONS

CERTIFIED; CONFLICT CERTIFIED.

TORPY, J., concurs.
BERGER, J., concurs in part and dissents in part, with opinion.




                                           10
BERGER, J., concurring in part; and dissenting in part.                      5D15-3799


       I agree with the majority decision to certify questions of great public importance.

However, because I cannot conclude that Peterson's fifty-six year prison sentence

constitutes a de facto life sentence, I respectfully dissent.




                                             11
