           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D18-191
                 _____________________________

LESTER SIMMONS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

                         May 16, 2019


ROWE, J.

     In 1967, Lester Simmons was convicted for the rape of an
adult woman. He was fifteen years old when he committed the
offense. Simmons pleaded guilty in exchange for the prosecutor’s
agreement not to recommend a sentence of death. 1 The victim


    1 At the time, the death penalty could be imposed for the
offense. Ten years later, the United States Supreme Court held
that a sentence of death for rape of an adult woman was
unconstitutional. Coker v. Georgia, 433 U.S. 584 (1977). Then in
2005, the Court held unconstitutional the imposition of the death
penalty on an offender who was under the age of eighteen when he
committed the offense. Roper v. Simmons, 543 U.S. 551 (2005).
testified at the sentencing hearing that Simmons surreptitiously
entered her home and raped her. The trial court sentenced
Simmons to life with the possibility of parole.

     For Simmons, the possibility of parole was realized—he was
granted parole twice and spent nearly eighteen years on parole,
before his parole was revoked for a second time. Then, in 2016,
almost fifty years after his sentence became final, Simmons moved
for postconviction relief under Florida Rule of Criminal Procedure
3.800(a). Simmons argued that his sentence violated the Eighth
Amendment prohibition against cruel and unusual punishment,
relying on Graham v. Florida, 560 U.S. 48 (2010), and Atwell v.
State, 197 So. 3d 1040 (Fla. 2016). In Graham, the United States
Supreme Court held 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 because
juveniles were entitled to a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.”
Graham, 560 U.S. at 75. The Supreme Court extended this
reasoning to juveniles sentenced to a mandatory term of life
imprisonment for a homicide offense. Miller v. Alabama, 567 U.S.
460, 479 (2012). In Atwell, the Florida Supreme Court relied on
Graham and Miller to hold that a juvenile homicide offender’s
sentence of mandatory life imprisonment with the possibility of
parole was unconstitutional because Florida’s parole system did
not provide for the individualized consideration of a juvenile’s
demonstrated maturity and rehabilitation. Atwell, 197 So. 3d at
1048-50.

     Simmons argued that his sentence of life with the possibility
of parole did not afford him a meaningful opportunity for release
based on a demonstration of his maturity and rehabilitation. The
postconviction court ordered the State to respond to Simmons’
motion. The State responded, conceding that Atwell entitled
Simmons to resentencing. The court granted Simmons’ motion
and ordered resentencing under the juvenile sentencing provisions
enacted in chapter 2014-220, Laws of Florida, which have been
codified in sections 775.082, 921.1401, and 921.1402, Florida
Statutes.



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     But before resentencing occurred, the court learned of changes
in the law casting doubt on whether Simmons should be
resentenced. In Currie v. State, 2 this Court held that a sentence of
life with the possibility of parole, like the one Simmons received,
was not the functional equivalent of a life sentence without the
possibility of parole when the defendant was in fact released on
parole. 219 So. 3d 960, 960 (Fla. 1st DCA 2017). We concluded
that Currie was not entitled to resentencing under Atwell. Currie,
219 So. 3d at 960.

     After being advised of Currie, the postconviction court
directed the parties to address whether Simmons’ sentence was
lawful.   The court heard arguments from the parties and
determined that Simmons’ sentence of life with the possibility of
parole was permissible under Currie and similar intervening
decisions by other district courts. 3 Seven months after granting
Simmons’ postconviction motion, the court entered an order
rescinding its original order and denying the motion. Simmons
appealed the second order, arguing that he was entitled to
resentencing. We agree.

     Because the order granting resentencing became final when
neither party moved for rehearing or appealed the order, the trial
court had no authority to enter a second order rescinding the
original order. This Court has twice held that an order on a motion
for postconviction relief is final and appealable even when
resentencing has not occurred. See Slocum v. State, 95 So. 3d 911
(Fla. 1st DCA 2012); Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA



    2  A year later, a plurality of Florida’s supreme court reached
the same conclusion. State v. Michel, 257 So. 3d 3 (Fla. 2018)
(holding that a juvenile’s life sentence with the possibility of parole
after twenty-five years’ imprisonment was not cruel and unusual
punishment).

    3  Vennissee v. State, 235 So. 3d 947 (Fla. 3d DCA 2017); Wright
v. State, 225 So. 3d 360 (Fla. 1st DCA 2017); Rooks v. State, 224
So. 3d 272 (Fla. 3d DCA 2017); Rodgers v. State, 223 So. 3d 281
(Fla. 4th DCA 2017).

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2012). And the supreme court has agreed. See Taylor v. State, 140
So. 3d 526 (Fla. 2014).

    In Jordan, we addressed for the first time whether a
postconviction order granting resentencing is final when
resentencing has not yet occurred. There, the postconviction court
granted Jordan’s rule 3.800(a) motion and ordered resentencing.
Jordan, 81 So. 3d at 596. But the judge passed away before
resentencing the defendant. Id. Seventy-seven days after the
order granting relief was entered, the State moved for
reconsideration of the order. Id. A successor judge reconsidered
the order and denied the motion. Id. On appeal, because the
motion for reconsideration was untimely, this Court held that the
order granting resentencing was final and the successor judge
lacked jurisdiction to reconsider it. Id.

     We next considered the finality of a postconviction order in
Slocum. There, the court denied Slocum’s postconviction challenge
to his convictions while granting resentencing. Slocum, 95 So. 3d
at 912. The court appointed counsel to represent Slocum at a
resentencing hearing that occurred more than thirty days after the
court granted Slocum’s postconviction motion.           Id.   After
resentencing, a timely notice of appeal was filed. Id. Slocum’s pro
se notice reflected that he was appealing the portion of the court’s
order that denied the challenges to his convictions. Id. In
conformity with his notice of appeal, the initial brief challenged
only the summary denial of a claim for postconviction relief, not
the resentencing. Id. Relying on Jordan, we determined that the
court’s order on the postconviction motion became final when
neither party moved for rehearing. Id. at 913. Because Slocum
did not appeal within thirty days of the date the postconviction
order was entered and because the initial brief did not challenge
the resentencing, this Court dismissed the appeal for lack for
jurisdiction. Id.

    More recently, the supreme court, in Taylor, accepted review
of a case from the Fifth District that conflicted with Slocum.
Taylor, 140 So. 3d at 527. The question presented was “whether
an order disposing of a postconviction motion which partially
denies and partially grants relief is a final order for purposes of
appeal, when the relief granted requires subsequent action in the

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underlying case, such as resentencing.” Id. The supreme court
answered the question in the affirmative, holding that unlike an
order denying a claim in a postconviction motion and granting an
evidentiary hearing on a different claim, an order denying relief in
part and granting it in part is a final, appealable order because it
marks the end of judicial labor on the postconviction motion. Id.
at 528-29.     The court rejected the State’s argument that
“permitting a postconviction appeal to proceed separately from a
resentencing appeal will encourage piecemeal litigation because,
as we have previously explained in other cases, postconviction
proceedings and resentencing proceedings are separate, legally
discrete proceedings.” Id. at 529. The supreme court held that an
“order partially denying and partially granting a motion for
postconviction relief was a final appealable order, even though
resentencing remained to be completed in the underlying case.” Id.

     Simmons argues that the postconviction court lacked
jurisdiction to rescind its order granting Simmons’ postconviction
motion. The State concedes that the original order was a final,
appealable order. But the State contends that the lower court
could still revisit its ruling on the postconviction motion because
Florida Rule of Criminal Procedure 3.192 provides: “Nothing in
this rule precludes the trial court from exercising its inherent
authority to reconsider a ruling while the court has jurisdiction of
the case.” This reading of the rule overlooks the preceding
sentence that expressly provides that the rule does not apply to
rule 3.800(a) proceedings. Fla. R. Crim. P. 3.192. Because
Simmons sought postconviction relief under rule 3.800(a), rule
3.192 did not authorize the postconviction court to reconsider its
earlier ruling.

     The order granting Simmons’ postconviction motion was a
final, appealable order because it brought an end to the judicial
labor on the motion. Taylor, 140 So. 3d at 528-29; Slocum, 95 So.
3d at 912; Jordan, 81 So. 3d at 596. The finality of the order was
not delayed because neither party moved for rehearing or
reconsideration of the order. See Fla. R. Crim. P. 3.800(b)(1)(B)
(authorizing either party to file a motion for rehearing within
fifteen days of the service of a signed, written order entered under
rule 3.800(a)). Nor did either party appeal the order. Because the


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original order was final, the trial court lacked jurisdiction 4 to enter
a second order rescinding the original order and denying
resentencing. We thus quash the order on appeal and remand with
directions that the trial court reinstate the order granting
Simmons’ rule 3.800(a) motion. The trial court should then
resentence Simmons to a lawful sentence. Simmons urgues us to
direct the court on remand to conduct a de novo resentencing under
chapter 2014-220, Laws of Florida. Because the postconviction
court did not previously rule on the proper sentence to be imposed
at resentencing, we decide only the jurisdictional issue before us.

    QUASHED and REMANDED with directions.

KELSEY, J., concurs; BILBREY, J., concurring with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


BILBREY, J., concurring.

     I agree with the majority that the order on appeal must be
reversed. Under existing case law, as discussed by the majority
opinion, the trial court was unable to rescind the March 2017
resentencing order once the order became final. The fact that the
December 2017 order appears to me to be a correct statement of
the law does not change the consideration.




    4 The jurisdictional defect here is procedural in nature, not one
affecting the court’s subject matter jurisdiction. See 14302 Marina
San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320,
321 (Fla. 1st DCA 2012) (Ray, J. concurring) (discussing the
distinctions among subject matter jurisdiction, case jurisdiction,
continuing jurisdiction, and procedural jurisdiction).

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     I write separately to note that when Simmons is resentenced,
“the decisional law effective at the time of the resentencing
applies.” State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Unless
the law changes before resentencing, the current decisional law is
that the Eighth Amendment is not violated when a defendant
sentenced for a nonhomicide offense committed as a juvenile has
an opportunity for parole. See Franklin v, State, 258 So. 3d 1239,
1241 (Fla. 2018). This is especially so where an offender, like
Simmons, “was afforded a meaningful opportunity to obtain
release and, in fact, was released on parole.” Currie v. State, 219
So. 3d 960, 960 (Fla. 1st DCA 2017). I therefore believe that the
trial court can, if it chooses, legally reimpose the same sentence.

                 _____________________________


Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.




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