          Supreme Court of Florida
                                  _____________

                                   No. SC15-2079
                                   ____________

                               THOMAS KELSEY,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [December 8, 2016]

PERRY, J.

      This case is before the Court for review of the decision of the First District

Court of Appeal in Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015). In its

decision, the district court expressed concern and certified a question of great

public importance,1 which we rephrase as follows:


      1. The following question was certified by the First District:

             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.
      Is a defendant whose original sentence violated Graham v. Florida,
      560 U.S. 48 (2010), and who was subsequently resentenced prior to
      July 1, 2014, entitled to be resentenced pursuant to the provisions of
      chapter 2014-220, Laws of Florida?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the rephrased

question in the affirmative.

                    FACTS AND PROCEDURAL HISTORY

      Thomas Kelsey was born on December 10, 1986. The underlying offenses

in this case occurred on November 6, 2002, when fifteen-year-old Kelsey

burglarized an apartment and raped the pregnant victim at knifepoint in the

presence of her two small children. Kelsey was identified in 2008 based on a DNA

match. In 2009, Kelsey was charged with two counts of armed sexual battery,

armed burglary, and armed robbery, and he pleaded guilty. On March 26, 2010, a

trial court sentenced Kelsey to two life sentences and two concurrent twenty-five-

year terms for four nonhomicide offenses. After the United States Supreme Court

decided Graham v. Florida, 560 U.S. 48 (2010), Kelsey sought to withdraw his

plea, which was denied. At the resentencing held in January 2014, the trial court

imposed concurrent sentences of forty-five years.2




       2. The sentences also run concurrently to a twenty-year sentence that Kelsey
is serving pursuant to a revocation of probation on an unrelated offense.


                                        -2-
      On appeal, the First District Court of Appeal originally issued an opinion in

Kelsey v. State, 183 So. 3d 439, 440 (Fla. 1st DCA 2015), comprised of one

paragraph, holding:

      Even if Mr. Kelsey were entitled to resentencing under Henry [v.
      State, 175 So. 3d 675 (Fla. 2015)], which applied the new sentence
      review statute to a Graham-eligible defendant, he is not entitled to the
      benefit of the new sentence review statute because his previous
      convictions for another separate armed robbery and conspiracy to
      commit armed robbery disentitle him to relief. See § 921.1402(2)(a),
      Fla. Stat. (2014) (“[A] juvenile offender is not entitled to review if he
      or she has previously been convicted of one of the following offenses,
      or conspiracy to commit one of the following offenses . . . armed
      robbery.”).
On Kelsey’s motion for rehearing, the First District issued a revised opinion,

reconsidering its legal analysis, and “concluding that [Kelsey] is not entitled to

resentencing again.” Id. Under its revised analysis, the First District opined that it

was precluded from providing Kelsey the same relief afforded to Henry because

Kelsey’s forty-five-year prison term did not constitute a de facto life sentence in

violation of Graham. Id. at 441 (citing Abrakata v. State, 168 So. 3d 251, 252 (Fla.

1st DCA 2015); Lambert v. State, 170 So. 3d 74, 76 (Fla. 1st DCA 2015)).

Specifically, the First District stated, “Because the concurrent resentences at issue

in this case do not violate Graham, we are constrained to deny relief.” Id.

      After recognizing our guidance in Thomas v. State, 135 So. 3d 590 (Fla. 1st

DCA 2014), quashed, 177 So. 3d 1275 (Fla. 2015) (table decision), the First

District distinguished Kelsey, opining that the decision in Thomas was based on


                                         -3-
Miller v. Alabama, 132 S. Ct. 2455 (2012),3 and its progeny, and not Graham. The

First District recognized that, “the supreme court appears to require that any

juvenile initially sentenced . . . in violation of Miller be sentenced under the new

framework regardless of what resentence may have been imposed in the interim.”

Kelsey, 183 So. 3d at 441. However, the district court reasoned:

      Unlike Miller cases for which no valid remedy on resentencing was
      available until the recent legislation, a wide range of valid term of
      years sentences are available for [juveniles] whose original sentences
      were unconstitutional under Graham. If those resentences themselves
      violate Graham by providing no meaningful opportunity for release
      (as in Henry and Gridine [v. State, 175 So. 3d 672 (Fla. 2015)]), the
      supreme court requires resort[ing] to the 2014 legislative remedies.
      But the supreme court has not yet held that all resentencings and re-
      resentencings under Graham must also comply with the recent
      legislation. Our precedents have not held that a forty-five year
      sentence for a nonhomicide is a de facto life term to which Graham
      applies; nor has our supreme court. We are thereby constrained to
      affirm in this case, but recognizing the need for clarity on this
      category of Graham cases certify the following question . . . .
Id. at 442.

                                   DISCUSSION

                                Standard of Review

      Because the certified question of great public importance before this Court

presents a purely legal question, the appropriate standard of review is de novo. See




      3. In Miller, the Supreme Court held that mandatory life sentences without
parole for crimes committed by juveniles violate the Eighth Amendment.


                                         -4-
Gridine, 175 So. 3d at 674 (citing Haygood v. State, 109 So. 3d 735, 739 (Fla.

2013)).

                                       Graham

      The United States Supreme Court’s decision in Graham held that Florida’s

practice of sentencing juvenile offenders to life in prison for nonhomicide crimes

violated the Eighth Amendment to the United States Constitution. For a period of

nearly four years, the Florida Legislature left the trial courts and district courts of

appeal to determine how to legally sentence juvenile nonhomicide offenders. In

2014, the Legislature passed chapter 2014-220, Laws of Florida, which provided

judicial review for juvenile offenders who were tried as adults and received more

than twenty years of incarceration, with exceptions. Following that, this Court, in

a unanimous decision, decided that juveniles who receive sentences that do not

provide a meaningful opportunity for release are entitled to be resentenced

pursuant to chapter 2014-220, Laws of Florida. As we discuss further below, we

conclude that our decision in Henry v. State, 175 So. 3d 675 (Fla. 2015), requires

that all juvenile offenders whose sentences meet the standard defined by the

Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled

to judicial review. We therefore hold that all juveniles who have sentences that

violate Graham are entitled to resentencing pursuant to chapter 2014-220, Laws of




                                          -5-
Florida, codified in sections 775.082, 921.1401 and 921.1402, Florida Statutes

(2014).

      To answer the First District’s certified question, we first revisit the Supreme

Court’s decision in Graham. Terrance Jamar Graham received a withheld

adjudication and was sentenced to probation for crimes he committed at the age of

sixteen. He subsequently received a life sentence after violating that probation

before he turned eighteen years of age. Graham, 560 U.S. at 53-57.

      The Supreme Court began its analysis with its Eighth Amendment

jurisprudence. Id. at 58. The Court noted that the core of the Eighth Amendment

“is the ‘precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.’ ” Id. at 59 (quoting Weems v. United States, 217

U.S. 349, 367 (1910)). The Court then noted that Graham presented a new

categorical challenge to term-of-years sentences. Id. at 61 (“The present case

involves an issue the Court has not considered previously: a categorical challenge

to a term-of-years sentence.”). Accordingly, the Court reasoned, the correct

approach to the analysis would be the one used in cases such as Kennedy v.

Louisiana, 554 U.S. 407 (2008), Roper v. Simmons, 543 U.S. 551 (2005), and

Atkins v. Virginia, 536 U.S. 304 (2002). Graham, 560 U.S. at 61-62.

      Opining that “Roper established that because juveniles have lessened

culpability they are less deserving of the most severe punishments,” Graham, 560


                                        -6-
U.S. at 68 (citing Roper, 543 U.S. at 569), the Court pronounced a categorical rule.

Id. at 75, 78, 79 (“Categorical rules tend to be imperfect, but one is necessary

here.” “A categorical rule avoids the risk that . . . a court or jury will erroneously

conclude that a particular juvenile is sufficiently culpable to deserve life without

parole for a nonhomicide.” “[A] categorical rule gives all juvenile nonhomicide

offenders a chance to demonstrate maturity and reform.”). The new categorical

rule provided that:

       The Constitution prohibits the imposition of a life without parole
       sentence on a juvenile offender who did not commit homicide. A
       State need not guarantee the offender eventual release, but if it
       imposes a sentence of life it must provide him or her with some
       realistic opportunity to obtain release before the end of that term.
Id. at 82.

       In this Court’s discussions of Graham, we have underscored the Supreme

Court’s emphasis on the status of the juvenile nonhomicide offender and the nature

of the offense committed. See Henry, 175 So. 3d at 675 (citing Graham, 560 U.S.

at 69). Accordingly, our focus has not been on the length of the sentence imposed

but on the status of the offender and the possibility that he or she will be able to

grow into a contributing member of society. To understand this reading of

Graham, we now turn to our decision in Henry.

                                        Henry




                                         -7-
      Leighdon Henry, a juvenile offender who was tried as an adult, was

convicted of multiple nonhomicide crimes and sentenced to life in prison plus an

additional sixty years. Henry, 175 So. 3d at 676. After Graham issued, Henry’s

life sentence was vacated and he was resentenced to thirty years in prison, to run

consecutively to the originally imposed sixty-year sentence. Id.

      On appeal, we concluded “that Graham prohibits the state trial courts from

sentencing juvenile nonhomicide offenders to prison terms that ensure these

offenders will be imprisoned without obtaining a meaningful opportunity to obtain

future early release during their natural lives based on their demonstrated maturity

and rehabilitation.” Id. at 680. We reasoned that the “Supreme Court’s long-held

and consistent view that juveniles are different” supported the conclusion that “the

specific sentence that a juvenile nonhomicide offender receives for committing a

given offense is not dispositive as to whether the prohibition against cruel and

unusual punishment is implicated.” Id. Thus, we determined that Graham was not

limited to certain sentences but rather was intended to insure 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.” Id. In light of this reasoning, we

concluded that the Eighth Amendment, as read through Graham, requires a review

mechanism for evaluating this class of offenders because “any term of


                                        -8-
imprisonment for a juvenile is qualitatively different than a comparable period of

incarceration is for an adult.” Id. Therefore, our holding in Henry was not

predicated on the term of the sentence but rather on the status of, and the

opportunity afforded, the offender. Indeed, the holding of Henry was unequivocal.

Additionally, we determined that the remedy outlined in Horsley v. State, 160 So.

3d 393, 395 (Fla. 2015), applied to cases like Henry’s. See Henry, 175 So. 3d at

680.

                                      Horsley

       In Horsley, a juvenile offender tried as an adult was convicted of first-degree

felony murder, among other offenses, and received a mandatory life sentence

without the possibility of parole. After Miller, the trial court resentenced Horsley

to life imprisonment without the possibility of parole. The Fifth District Court of

Appeal vacated that sentence and certified a question of great public importance to

this Court.4 In our decision, we reasoned that “presented with this unique situation

in which a federal constitutional infirmity in a sentencing statute has now been




      4. The Fifth District asked: “Whether the Supreme Court’s decision in
Miller v. Alabama, [132 S. Ct. 2455 (2012)], which invalidated section
775.082(1)’s mandatory imposition of life without parole sentences for juveniles
convicted of first-degree murder, operates to revive the prior sentence of life with
parole eligibility after 25 years previously contained in that statute?” Horsley, 160
So. 3d at 397 (quoting Horsley v. State, 121 So. 3d 1130, 1132-33 (Fla. 5th DCA
2013)).


                                         -9-
specifically remedied by our Legislature, we conclude that the proper remedy is to

apply [that legislation] to all juvenile offenders whose sentences are

unconstitutional in light of Miller.” Horsley, 160 So. 3d at 395.

      Miller held that “the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders,” even

for juveniles convicted of homicide crimes. Miller, 132 S. Ct. at 2469. While the

remedy articulated in Horsley initially only applied to those juvenile defendants

whose sentences violated the Eighth Amendment pursuant to Miller, we extended

the reasoning of Horsley to those juveniles whose sentences violated the Eighth

Amendment pursuant to Graham in Henry. See Henry, 175 So. 3d at 680. We

have since reaffirmed that application of the new statute is the appropriate remedy.

See Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

      Reading together our decisions in Henry, Horsley, and Thomas, it is clear

that we intended for juvenile offenders, who are otherwise treated like adults for

purposes of sentencing, to retain their status as juveniles in some sense. In other

words, we have determined through our reading of the Legislature’s intent in

passing chapter 2014-220, Laws of Florida, that juveniles who are serving lengthy

sentences are entitled to periodic judicial review to determine whether they can

demonstrate maturation and rehabilitation. It would be antithetical to the precept

of Graham and chapter 2014-220, Laws of Florida, to interpret them so narrowly as


                                        - 10 -
to exclude a juvenile offender who happens to have been resentenced before this

Court issued Henry. With these considerations in mind, we turn to the present

case.

                                      This Case

        Kelsey represents a narrow class of juvenile offenders, those resentenced

from life to term-of-years sentences after Graham, for crimes committed before

chapter 2014-220’s July 1, 2014, effective date. Kelsey argues that his sentence

does not currently provide the relief specified in our previous decisions and seeks

the judicial review granted to other defendants who, like him, were sentenced to

terms that will not provide them a meaningful opportunity for relief in their

respective lifetimes. We agree.

        After we made clear that Graham does indeed apply to term-of-years

sentences, we have declined to require that such sentences must be “de facto life”

sentences for Graham to apply. See, e.g., Guzman v. State, 183 So. 3d 1025, 1026

(Fla. 2016). By using chapter 2014-220 as a guide, we avoid second-guessing the

legislative contemplation that resulted in the twenty-year cutoff for judicial review

contained in the law. However, in applying chapter 2014-220, we agree with the

State that the new sentencing scheme contemplates the possibility of a life sentence

for a juvenile nonhomicide offender. See Horsley, 160 So. 3d at 404 (“Juveniles

convicted of nonhomicide offenses, thereby implicating Graham rather than Miller,


                                        - 11 -
also may be sentenced to life imprisonment if the trial court, after considering the

specified factors during an individualized sentencing hearing, determines that a life

sentence is appropriate.” (citing ch. 2014-220 §§ 1, 3, Laws of Fla.)). Because we

determine that resentencing is the appropriate remedy, the trial courts may embrace

all of the provisions of chapter 2014-220 and are not required to limit themselves

to only applying the judicial review provision. This would mean that if the State

seeks a life sentence, the trial court’s determination would have to be informed by

individualized sentencing considerations.

      Kelsey further argues that he has a reasonable expectation of finality in his

forty-five-year prison term because his term is lawful apart from its failure to

provide judicial review. We disagree.

      In Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003), we held that “[o]nce a

sentence has been imposed and the person begins to serve the sentence, that

sentence may not be increased without running afoul of double jeopardy

principles.” (citing Lippman v. State, 633 So. 2d 1061 (Fla. 1994); Clark v. State,

579 So. 2d 109 (Fla. 1991)). To do so, we articulated, was a clear violation of the

Double Jeopardy Clause. Id. (citing State v. Wilson, 680 So. 2d 411, 413 (Fla.

1996)). In 2012, we clarified that jeopardy attaches only to a legal sentence.

Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (citing Harris v. State, 645 So. 2d

386 388 (Fla. 1994)).


                                        - 12 -
      Therefore, jeopardy has not attached to Kelsey’s illegal sentence, and when

he is resentenced according to the provisions of chapter 2014-220, the State may

again seek life imprisonment with judicial review. Kelsey originally began serving

his sentence as a life sentence, but that sentence became illegal when the Supreme

Court issued Graham and Kelsey successfully sought relief. However, his sentence

was unconstitutional not because of the length of his sentence, but because it did

not provide him a meaningful opportunity for early release based on maturation

and rehabilitation. Accordingly, Kelsey’s resentencing under the provisions of

chapter 2014-220 would not place him in any worse position than he would have

been had he initially faced post-Graham resentencing under the statute.

      For these reasons, there is no compelling reason that the State must be

precluded from seeking a life sentence that complied with Graham:

            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.
Graham, 560 U.S. at 75. In Henry, we determined that the Legislature’s remedy

was the appropriate remedy in these cases, and the Legislature has determined that

the “means and mechanisms for compliance” with Graham are to provide judicial

review for juvenile offenders who are sentenced to terms longer than twenty years.

Therefore Kelsey is entitled to resentencing under those provisions. We therefore


                                         - 13 -
answer the rephrased question in the affirmative and remand for further

proceedings consistent with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., and PERRY,
J., concur.
POLSTON, J., dissents with an opinion, in which LEWIS and CANADY, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring.

      I concur with the majority that juvenile offenders like Kelsey, who were

previously resentenced after the United States Supreme Court decided Graham v.

Florida, 560 U.S. 48 (2010), but before the Legislature enacted chapter 2014-220,

Laws of Florida, are entitled to resentencing under this sentencing scheme.

Majority op. at 14. Resentencing under this new juvenile sentencing scheme

includes, in most instances, the benefit of judicial review of the sentence as set

forth in section 921.1402(2), Florida Statutes (2014). See majority op. at 11-12.

      I write to emphasize that, in this case, even though our precedent in Dunbar

v. State, 89 So. 3d 901 (Fla. 2012), does not preclude the State from seeking a life

sentence on remand because Kelsey’s previously imposed sentence was illegal, the

individualized sentencing consideration required by Graham and our juvenile

sentencing precedent will likely preclude such a sentence. Indeed, as I explain

                                        - 14 -
below, I would conclude that Kelsey is precluded from being resentenced to a term

exceeding his current forty-five-year sentence when the sentencing court takes into

account all of the sentencing factors set forth in section 921.1401(2).

      As we explained in Landrum v. State, chapter 2014-220 sets forth the

individualized sentencing considerations that a sentencing court must consider

“when determining if a juvenile offender should be sentenced to life

imprisonment.” 192 So. 3d 459, 466 (Fla. 2016). These considerations have since

been codified in section 921.1401(2), Florida Statutes (2014), and include the

following sentencing factors:

            (a) The nature and circumstances of the offense committed by
      the defendant.

          (b) The effect of the crime on the victim’s family and on the
      community.

           (c) The defendant’s age, maturity, intellectual capacity, and
      mental and emotional health at the time of the offense.

           (d) The defendant’s background, including his or her family,
      home, and community environment.

             (e) The effect, if any, of immaturity, impetuosity, or failure to
      appreciate risks and consequences on the defendant’s participation in
      the offense.

             (f) The extent of the defendant’s participation in the offense.

            (g) The effect, if any, of familial pressure or peer pressure on
      the defendant’s actions.




                                        - 15 -
             (h) The nature and extent of the defendant’s prior criminal
      history.

            (i) The effect, if any, of characteristics attributable to the
      defendant’s youth on the defendant’s judgment.

             (j) The possibility of rehabilitating the defendant.

      The record in this case demonstrates that, while the sentencing court did not

consider all of the above factors, the sentencing court was aware that the

Legislature was at the time considering legislation later enacted as chapter 2014-

220, Laws of Florida. Indeed, the sentencing court considered some of the

individualized sentencing considerations since codified in section 921.1401(1)

when determining whether to again sentence Kelsey to life in prison or to some

lesser term. As the court explained:

      We have to make a decision based on what we know about a person’s
      history, taking into account their psychological condition, their mental
      health, their age, you know, disabilities, severity of the crime, and all
      of the factors that [the psychologist] went over and defense counsel
      has adequately covered.

      Further, the sentencing court heard testimony from a psychologist who had

evaluated Kelsey, and whose testimony underscored “the special status of juvenile

offenders for purposes of criminal punishment.” Henry v. State, 175 So. 3d 675,

677 (Fla. 2015). As the psychologist explained:

            So, you have a 15 year old with a 80 IQ, borderline intellectual
      functioning, maybe even a lower achievement at that age, maybe, I
      don’t know. And then you have an adolescent, young brain
      develop[ment], where they have low decision making ability, frontal

                                        - 16 -
      lobe not being developed, executive functioning not being developed,
      and that’s compounded by an IQ in the borderline range.
             Secondary, you have a kid whose, you know, in a marginal
      lifestyle, some trouble, maybe some special education, and he’s not
      functioning very high in terms of cognitive ability and he’s hanging
      out with what we call deviant peers. And so—well, I don’t that, I
      didn’t see him when he was 15, I’m making some hypothesis from
      evaluating juveniles over the years, and often juveniles with this level
      of functioning start doing bad things, start doing delinquent type
      things because they’re faced with the choice of being called lots of
      names, retarded, dumb, dummy, and they don’t want to be called
      those things and the way to get around that is to start acting out, and
      so they can be called bad, and they get identified as bad, and that’s
      part of their personality, and it’s the way they get accepted, and
      knowledge of deviant peer groups, but they want to fight against being
      called dumb or any of those derogatory words that teenage boys are
      apt to use. And so, they overcompensate and they get tough and street
      tough and start acting tough, and they start looking like the delinquent
      kid, and it’s really because of the way they are in their life, without
      enough positive adult mentoring peer, without enough appropriate
      prosocial peer groups. So, it has, sorry to use this word, it has a
      waterfall effect, you know.

      These statements demonstrate that the sentencing court was cognizant of the

United States Supreme Court’s command that the “status of juvenile offenders

warrants different considerations by the states whenever such offenders face

criminal punishments as if they are adults.” Id. at 678. Therefore, even though

chapter 2014-220 “contemplates the possibility of a life sentence for a juvenile

nonhomicide offender,” majority op. at 12, I would conclude that such a possibility

is slim. This is especially so in this case, where the sentencing court previously

tried to comply with Graham during resentencing, expressly considered some of

the sentencing factors now codified in section 921.141, and sentenced the juvenile

                                        - 17 -
offender to concurrent sentences of forty-five years. Put simply, upon

resentencing, the sentencing court must consider whether Kelsey is the “rare

juvenile offender whose crime reflects irreparable corruption,” and thereby

warrants a life sentence. Horsley, 160 So. 3d at 397 (citing Miller v. Alabama, 132

S. Ct. 2455, 2469 (2012)). In my view, imposing a lengthier sentence in this

nonhomicide case upon consideration of additional individualized sentencing

factors would violate the basic “precept of justice that punishment for crime should

be graduated and proportioned to [the] offense.” Landrum, 192 So. 3d at 460-61

(quoting Graham, 560 U.S. at 59) (noting that upholding a juvenile offender’s life

without parole sentence for second-degree murder “would violate this precept, as a

juvenile convicted of the lesser offense of second-degree murder would receive a

harsher sentence than a juvenile convicted of first-degree murder”).

LABARGA, C.J., and PERRY, J., concur.

POLSTON, J., dissenting.

      When Kelsey was fifteen years old, he committed burglary and raped a

pregnant woman at knifepoint in front of her two small children. Unlike the

majority, I would approve the First District Court of Appeal’s decision affirming

Kelsey’s resentencing for these crimes. I also would answer the question as

certified in the negative and hold that “a defendant whose initial sentence for a

nonhomicide crime violate[d] Graham v. Florida, and who [was] resentenced to


                                        - 18 -
concurrent forty-five year terms, is [not] entitled to a new resentencing under the

framework established in chapter 2014-220, Laws of Florida.” Kelsey v. State,

183 So. 3d 439, 442 (Fla. 1st DCA 2015).

      In Graham v. Florida, 560 U.S. 48, 82 (2010), the United States Supreme

Court held the following:

             The Constitution prohibits the imposition of a life without
             parole sentence on a juvenile offender who did not commit
             homicide. A State need not guarantee the offender eventual
             release, but if it imposes a sentence of life it must provide him
             or her with some realistic opportunity to obtain release before
             the end of that term.
Subsequently, this Court in Henry v. State, 175 So. 3d 675, 676 (Fla. 2015),

reviewed a district court decision holding that Graham “does not apply to term-of-

years prison sentences because such sentences do not constitute life

imprisonment.” This Court disagreed and held “that Graham does apply and that

the sentence at issue will not provide a meaningful opportunity for release.” Id.

Specifically, this Court explained that “Graham requires a juvenile nonhomicide

offender, such as Henry, to be afforded such an opportunity during his or her

natural life.” Id. at 679. Then, this Court explained that, “[b]ecause Henry’s

aggregate sentence, which totals ninety years and requires him to be imprisoned

until he is at least nearly ninety-five years old, does not afford him this

opportunity, that sentence is unconstitutional under Graham.” Id. at 679-80.




                                         - 19 -
      In contrast to Henry, Kelsey was sentenced to an aggregate of forty five

years for crimes he committed when he was fifteen years old. Because Kelsey’s

term-of-years aggregate sentence is not a de facto life sentence, Kelsey will have a

meaningful opportunity for release during his natural life. Therefore, Kelsey’s

aggregate sentence does not violate Graham, and he is not entitled to resentencing.

Cf. Henry, 175 So. 3d at 680 (“Because we have determined that Henry’s sentence

is unconstitutional under Graham, we conclude that Henry should be resentenced

in light of the new juvenile sentencing legislation enacted by the Florida

Legislature in 2014, ch. 2014-220, Laws of Fla.”).

      Accordingly, I respectfully dissent.

LEWIS and CANADY, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance

      First District - Case No. 1D14-518

      (Duval County)

Nancy Ann Daniels, Public Defender, and Glen Phillip Gifford, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                        - 20 -
Julianne M. Holt, President, Tampa, Florida; and Jonathan Harris Greenberg,
Assistant Public Defender, Miami, Florida,

      for Amicus Curiae Florida Public Defender Association, Inc.

Paolo Giuseppe Annino of FSU College of Law Public Interest Law Center,
Tallahassee, Florida; and Marsha L. Levick of the Juvenile Law Center,
Philadelphia, Pennsylvania,

      for Amici Curiae FSU College of Law Public Interest Law Center, Juvenile
      Law Center, ACLU of Florida, CFFSY, The Center on Children and
      Families at UF, Children and Youth Law Clinic at UM, FACDL, FCF,
      FJRRP At FIU, FLS, National Association of Counsel for Children,
      NAFPD, NJDC, SJDC, and SPLC




                                     - 21 -
