        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                  LEROY DAVIS,
                                    Appellant,

                                        v.

                           STATE OF FLORIDA,
                                Appellee.

                                  No. 4D19-618

                            [September 18, 2019]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Barbara A. McCarthy,
Judge; L.T. Case No. 82-004054CF10B.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   No brief filed for appellee.

KUNTZ, J.

   Leroy Davis appeals an order denying his motion to vacate sentence
based on Miller v. Alabama, 567 U.S. 460 (2012), and Graham v. Florida,
560 U.S. 48 (2010). The issue presented in this case is similar to the issue
addressed in this Court’s opinion of Jones v. State, No. 4D18-3589 (Fla.
4th DCA Sept. 18, 2019), also released today.

    In Jones, the defendant moved for resentencing based on Miller and
Graham. Jones, slip op. at 1. After the circuit court granted the motion
and ordered resentencing, the State did not seek rehearing or appeal. Id.
at 2. But after a change in the law, see, e.g., Franklin v. State, 258 So. 3d
1239 (Fla. 2018); State v. Michel, 257 So. 3d 3 (Fla. 2018), the State
changed its position and objected to resentencing. Jones, slip op. at 2.
The circuit court agreed with the State and vacated the order granting
resentencing. Id. But because the circuit court lacked jurisdiction to
reconsider the earlier order granting resentencing, we quashed the order
on appeal and remanded with instructions to resentence the defendant to
a lawful sentence. Id.
   This case is distinguishable from Jones in a significant way. In this
case, the circuit court did not enter an order granting the motion for
resentencing. Because it had not ordered resentencing, there was no final
order for the State to appeal. And, because there was no final order
granting resentencing, the court was not required to resentence the
defendant.

   Finally, we agree with the circuit court on the merits that the
defendant’s sentence was not illegal. See State v. Wesby, 262 So. 3d 818,
818 (Fla. 4th DCA 2019) (citing Franklin, 258 So. 3d at 1240–41; Michel,
257 So. 3d at 3).

   Affirmed.

WARNER and CIKLIN, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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