         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


CHAUNCEY DAVIS,

             Appellant,

 v.                                                 Case No. 5D16-2236

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed June 30, 2017

Appeal from the Circuit Court
for Orange County,
Robert M. Evans, Senior Judge.

Aaron Baghdadi, of Baghdadi Law, P.A.,
Longwood, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

      When he was seventeen years old, Chauncey Davis tendered a nolo contendere

plea to charges of attempted robbery with a deadly weapon, aggravated battery with a

deadly weapon, aggravated battery on a law enforcement officer with a deadly weapon,

and fleeing or attempting to elude a law enforcement officer at a high speed or with

wanton disregard. The trial court accepted the plea, designated Davis as a youthful
offender,1 and sentenced him to serve one year of community control to be followed by

four years and ten months of probation. Not long thereafter, Davis substantively violated

his community control by committing an armed carjacking, together with several technical

violations. At that time, Davis was eighteen years old. The trial court revoked community

control and probation and sentenced Davis to serve an aggregate forty-five years in

prison. The primary question that we address in this appeal is whether Davis was entitled

to be sentenced pursuant to the juvenile offender sentencing laws codified at sections

775.082, 921.1401, and 921.1402, Florida Statutes (2015), because he was a minor when

he initially committed these crimes.      As explained below, because we find Justice

Pariente’s concurring opinion in Guzman v. State, 183 So. 3d 1025 (Fla. 2016), to be

persuasive, we hold that the trial court was correct in not applying the juvenile sentencing

laws when it sentenced Davis, and therefore, we affirm his aggregate sentence.

       In Guzman, the Florida Supreme Court reviewed the decision of the Fourth District

Court of Appeal in Guzman v. State, 110 So. 3d 480 (Fla. 4th DCA 2013), in which the

Fourth District affirmed Guzman’s sixty-year prison sentence but certified the following

two questions of great public importance:

                1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S. CT.
                2011, 176 L. ED. 2D 825 (2010), APPLY TO LENGTHY
                TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE
                FACTO LIFE SENTENCES?

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

110 So. 3d at 483. Guzman committed multiple violent crimes when he was fourteen

years old and, following a guilty plea to all charges, was sentenced to juvenile probation,



       1   See chapter 958, Florida Statutes.


                                                2
to be followed by adult probation. Id. at 481. When he was eighteen years old, Guzman

violated his probation by committing the criminal offense of kidnapping. Id. The trial court

revoked his probation, and Guzman was eventually sentenced to serve sixty years in

prison.2 Id. Guzman appealed, claiming that his sentence amounted to a de facto life

sentence in violation of Graham, which prohibited a juvenile nonhomicide offender from

receiving a sentence that precluded the offender from a “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.” Id. at 481–83 & n.2 (quoting

Graham, 560 U.S. at 75).

       The Florida Supreme Court discharged jurisdiction, explaining that in Henry v.

State, 175 So. 3d 675 (Fla. 2015), and Gridine v. State, 175 So. 3d 672 (Fla. 2015), it had

previously answered the first certified question in the affirmative. Guzman, 183 So. 3d at

1026. The court declined to answer the second certified question. Id.

       Pertinent to the instant appeal is Justice Pariente’s concurring opinion, in which

she cogently explained that the dispositive reason that jurisdiction was discharged and

Guzman was not entitled to be resentenced consistent with Graham and the Florida

Supreme Court’s decisions interpreting Graham was because Guzman violated his

probation after he had become an adult. Id. at 1027. Justice Pariente observed that

otherwise, Guzman’s sixty-year sentence would have been unconstitutional under

Graham because it did not provide him with a “meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.” Id. Justice Pariente recognized that

it may seem arbitrary that an individual such as the defendant in Graham, who violated




       2Guzman was first sentenced to life in prison, but that sentence was reversed by
the Fourth District. Guzman v. State, 68 So. 3d 295 (Fla. 4th DCA 2011).


                                             3
probation when he was seventeen years old but whose sentence was thereafter reversed

because it did not provide Graham with a meaningful opportunity to obtain early release

based upon demonstrated maturity and rehabilitation, would be treated differently in

sentencing than Guzman, who violated probation at age eighteen and was therefore not

entitled to resentencing.   Nevertheless, she asserted that “the line must be drawn

somewhere” and that “[s]ociety has consistently drawn it at age eighteen.” Id. Because

Guzman was not entitled to relief and the Court had already answered the first certified

question, Justice Pariente agreed that discharge of jurisdiction was appropriate. Id.

       We agree with Justice Pariente and adopt her analysis. In this case, because

Davis, like Guzman, was eighteen years old when he violated community control, he was

not entitled to be sentenced under Florida’s juvenile sentencing statutes,3 and the trial

court was correct in that regard.

       Davis raises one other issue, arguing that the trial court erred by not continuing his

youthful offender status when it imposed the instant sentence. Davis is correct that

“[o]nce a circuit court has imposed a youthful offender sentence, it must continue that

status even upon resentencing after a substantive violation of probation.” Long v. State,

99 So. 3d 997, 997–98 (Fla. 5th DCA 2012) (citing Christian v. State, 84 So. 3d 437, 442–

43 (Fla. 5th DCA 2012); Mosley v. State, 77 So. 3d 877, 877 (Fla. 2d DCA 2012)). The

reason for maintaining a defendant’s youthful offender status is because “it affects the

defendant’s classification within the prison system and the programs and facilities to



       3 Florida’s juvenile sentencing statutes were not discussed in Guzman because
they did not become effective until July 1, 2014, after the Fourth District had issued its
decision. These statutes were specifically enacted to bring Florida’s juvenile sentencing
statutes into compliance with Graham and the later case of Miller v. Alabama, 567 U.S.
460 (2012). Horsley v. State, 160 So. 3d 393, 394 (Fla. 2015).


                                             4
which the defendant can be assigned.” Id. at 998 (citing Blacker v. State, 49 So. 3d 785,

787 n.2 (Fla. 4th DCA 2010); § 958.11, Fla. Stat. (2008)).

       The trial court erred in not maintaining Davis’s youthful offender status when it

sentenced him after violating community control. Nevertheless, Davis is presently not

entitled to relief because he did not preserve this error for review by either objecting at

sentencing or by timely filing a motion pursuant to Florida Rule of Criminal Procedure

3.800(b). Cf. Goff v. State, 197 So. 3d 98, 99 (Fla. 2d DCA 2016) (finding that defendant

properly preserved for appellate review the trial court’s failure to continue his designation

as a youthful offender after revoking his probation by filing a Florida Rule of Criminal

Procedure 3.800(b)(2) motion).

       Accordingly, we affirm the aggregate sentence in this case, but we do so without

prejudice to Davis seeking postconviction relief related to his youthful offender status.

       AFFIRMED.

TORPY, J., concurs.
BERGER, J., concurs in result only.




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