         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

JAMIE LYNN TYSON,

             Appellant,

 v.                                                         Case No. 5D15-4050

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed September 2, 2016

3.850 Appeal from the Circuit Court
for Hernando County,
Stephen E. Toner, Jr., Judge.

Jamie Lynn Tyson, Century, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Jamie Lynn Tyson ("Appellant") appeals the trial court's denial of his Florida Rule

of Criminal Procedure 3.850 motion for postconviction relief. Appellant was convicted of

robbery with a weapon, conspiracy to commit robbery with a deadly weapon, and

evidence tampering. The trial court sentenced Appellant, then 17 years old, to 30 years

for robbery with a weapon, 15 years for conspiracy, and 5 years for evidence tampering.

Appellant's sentences were to run consecutively. Appellant argues, and we agree, that
his sentences violate Henry v. State, 175 So. 3d 675 (Fla. 2015), by not affording him a

meaningful opportunity for early release based upon demonstrated maturity and

rehabilitation. We vacate Appellant's sentences, remand for resentencing, certify conflict

with the First and Second District Courts, and certify four questions of great public

importance to our supreme court.

      In Graham v. Florida, the United States Supreme Court held that the Eighth

Amendment prohibits the imposition of a life-without-parole sentence for a juvenile

offender who did not commit a homicide. 560 U.S. 48, 52 (2010). The Court explained its

holding as follows:

               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 defendants like Graham some
               meaningful opportunity to obtain release based on
               demonstrated maturity and rehabilitation. It is for the State, in
               the first instance, to explore the means and mechanisms for
               compliance. 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. Those who commit truly horrifying crimes as juveniles
               may turn out to be irredeemable, and thus deserving of
               incarceration for the duration of their lives. 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.

Id. at 75 (emphasis added).

      In response to Graham, our Legislature amended three statutory sections

concerning juvenile sentencing, effective on July 1, 2014. See ch. 2014-220, Laws of Fla.1




      1   Now codified in sections 775.082, 921.1401, 921.1402, Florida Statutes (2014).
                                              2
The new juvenile sentencing framework does not prohibit lengthy term-of-years

sentences; rather, it establishes a review mechanism whereby the sentencing court can

modify the sentence based upon demonstrated maturity and rehabilitation. Id.

      After this new framework took effect, our supreme court issued its opinion in Henry,

addressing whether Graham applies to lengthy term-of-years sentences. Henry, 175 So.

3d at 676. The court answered that question in the affirmative:

             [W]e have determined that Graham applies to ensure that
             juvenile nonhomicide offenders will not be sentenced to terms
             of imprisonment without affording them a meaningful
             opportunity for early release based on a demonstration of
             maturity and rehabilitation.

                    In light of Graham, and other Supreme Court
             precedent, we conclude that the Eighth Amendment will not
             tolerate prison sentences that lack a review mechanism for
             evaluating this special class of offenders for demonstrable
             maturity and reform in the future because any term of
             imprisonment for a juvenile is qualitatively different than a
             comparable period of incarceration is for an adult.


Id. at 680 (citation omitted). Finding that the defendant's 90-year sentence violated

Graham, the court reversed and remanded for resentencing with retroactive application

of the new sentencing framework. Id. On the same date our supreme court issued Henry,

it determined that a juvenile's 70-year sentence likewise violated Graham. Gridine v.

State, 175 So. 3d 672, 674-75 (Fla. 2015). Accordingly, the court remanded for

resentencing with retroactive application of sections 775.082(3)(c), 921.1401, and

921.1402. Id. at 675.

      In light of the foregoing, our court has determined that a term-of-years sentence

that does not afford a meaningful opportunity for early release based on demonstrated

maturity and rehabilitation violates Graham, requiring resentencing with retroactive

                                            3
application of the new sentencing framework. See, e.g., Peterson v. State, 193 So. 3d

1034 (Fla. 5th DCA 2016). Conversely, the First District Court has held that a similar

sentence does not violate Graham, thus retroactive application is not warranted. Kelsey

v. State, 183 So. 3d 439, 442 (Fla. 1st DCA 2015), on reh'g (Nov. 9, 2015), review

granted, SC15-2079, 2015 WL 7720518 (Fla. Nov. 19, 2015); see also Williams v. State,

41 Fla. L. Weekly D508 (Fla. 2d DCA Feb. 26, 2016) ("The postconviction court correctly

denied [defendant's] claim. [Defendant] would be entitled to be resentenced only if his

sentence violated Graham." (citation omitted)).

       In Peterson, our court determined that the defendant's 56-year sentence could not

stand under Graham and its progeny. Peterson, 193 So. 3d at 1039. We relied on the

Florida Supreme Court's holding in Thomas v. State, 177 So. 3d 1275 (Fla. 2015), which

quashed the First District Court's decision in Thomas v. State, 135 So. 3d 590 (Fla. 1st

DCA 2014). In Thomas, the First District Court upheld a juvenile defendant's 30-year

sentence for armed robbery, concurrent with his 40-year sentence for first-degree murder.

135 So. 3d at 590. Though not a life sentence, our supreme court reversed and remanded

for resentencing "in conformance with the framework established in chapter 2014-220,

Laws of Florida." Thomas, 177 So. 3d at 1275 (citation omitted). We noted in Peterson

that, because the juvenile in Thomas committed a homicide, his sentence implicated

Miller,2 not Graham. Peterson, 193 So. 3d at 1038. Nonetheless, we highlighted the

potentially inconsistent result of not reversing the juvenile's sentence:

              Though Thomas involved a juvenile who committed a
              homicide, thereby implicating Miller and not Graham, as noted


       2 Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding that the Eighth Amendment
prohibits sentencing schemes mandating life-without-parole sentences for juvenile
homicide offenders).
                                             4
              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.

Id. (citing Kelsey, 183 So. 3d at 447 n.6 (Benton, J., dissenting)). Accordingly, we vacated

the defendant's sentence and remanded for resentencing consistent with the new juvenile

sentencing framework. Id.

       Relying on Peterson, we conclude that Appellant's composite 45-year sentence

violates Graham and its progeny. Importantly, we do not suggest that the trial court cannot

sentence Appellant to 45 years' incarceration. Rather, the sentence imposed upon

remand must include the requirement that Appellant is entitled to review of his sentence

after serving 20 years. See § 921.1402(2)(d), Fla. Stat. (2014).

       Having concluded that Appellant's sentence violates Graham, we certify conflict

with the following decisions upholding sentences longer than or equal to Appellant's,

without retroactive application of the new sentencing framework: Collins v. State, 189 So.

3d 342 (Fla. 1st DCA 2016); Williams, 41 Fla. L. Weekly D508; Kelsey, 183 So. 3d 439;

Austin v. State, 127 So. 3d 1286 (Fla. 1st DCA 2013); Thomas v. State, 78 So. 3d 644

(Fla. 1st DCA 2011).

       Additionally, we certify the same four questions of great public importance that we

did in Peterson:

              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?

                                             5
           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?


     VACATED;    REMANDED     for   RESENTENCING;   CONFLICT   CERTIFIED;

QUESTIONS CERTIFIED.



ORFINGER, COHEN and WALLIS, JJ., concur.




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