          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-2541
                 _____________________________

SHAWN DAVID JACKSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

                          June 12, 2019


WETHERELL, J.

    After a hearing under section 921.1401, Florida Statutes, the
appellant, Shawn David Jackson, was resentenced to life in prison
for what the trial court described as “an especially heinous,
atrocious and cruel murder.” On appeal, Jackson argues that (1)
the trial court erred by not imposing the burden of proof on the
State at the resentencing hearing and (2) a life sentence was not
appropriate in this case. We summarily reject the first argument
because it is clear from the trial court’s sentencing order that the
sentence in this case would have been the same irrespective of
which (if either 1) party had the burden of proof, and we reject the
second argument for the reasons that follow.

                               Facts

    In 1989, Jackson brutally raped and murdered a young
woman in her home. He was 17 years and two months old at the
time. The trial court summarized the crime as follows:

    [Jackson] was living in the same neighborhood as the
    [victim’s] family in High Springs . . . . While it is possible
    that the victim and [Jackson] may have seen each other
    before, [Jackson] and others reported that they had had
    no personal contact until [Jackson] came to the [victim’s]
    residence on [the day before the murder]. On that day,
    [Jackson] went to the [victim’s] residence asking to use
    the telephone. [Jackson] claimed the phone in his
    residence was not working. Later investigation revealed
    that to be untrue. . . . .

    [The following day], [Jackson] returned to the [victim’s]
    residence where [she] was home alone caring for [a] 15
    month old [child]. [Jackson] once again asked to use the
    telephone claiming again that the phone at his residence
    was not working. According to [Jackson], [the victim]
    allowed him into her home to use the telephone.
    [Jackson] stated he was nervous and upset when he was
    unable to reach his friend on the phone. He then stated
    that [the victim] “flashed” him a smile that he interpreted
    as mocking him. He described himself as losing all
    conscious control, entering a psychotic rage, and raping
    and murdering [the victim] by strangling her to death.
    [Jackson] stated the victim did not entice him in any way.
    He reported that he took her smile “really badly” and
    lunged at her as a result.



    1  See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986)
(“Sentencing courts have traditionally heard evidence and found
facts without any prescribed burden of proof at all.”).

                                  2
    [Jackson] stated that he grabbed the victim by the throat
    and she began to struggle. He described the victim
    coming up off the couch in the living room where she was
    seated, struggling to get free. [Jackson] was eventually
    able to subdue her in the hallway of the home where she
    went down on her back. [Jackson] indicated that the
    strangulation seemed very long, stating to law
    enforcement that the “choking part seemed like it took
    hours.” After she went limp, he removed her shorts and
    underwear, dropped his pants to his knees and began
    having vaginal sex with her while still possibly choking
    her. [Jackson] believed he ejaculated and described the
    sex as brief. After the rape, [Jackson] described the
    victim as limp and unresponsive with blood coming from
    her mouth and nose. Some of that blood got on [Jackson]’s
    hands so after placing the victim’s shorts over her to cover
    part of her body, he went to the kitchen to wash his
    hands. He then went through the victim’s purse which
    was in the laundry room. He removed cash and car keys.
    [Jackson] then locked both doors to the [victim’s]
    residence to give him more time to get away and left the
    victim’s body and the 15 month old child inside. He took
    the victim’s [car] and traveled south . . . towards
    Newberry to obtain gas. Before getting to Newberry, he
    picked up a friend . . . and told him he had just killed a
    woman and stolen her car. [The friend] agreed to leave
    the area and assist [Jackson] in avoiding apprehension.

     Jackson was arrested the next day in Virginia driving the
victim’s stolen car. He told law enforcement that he was planning
to go to Maine and that “he couldn’t think of any reason why he
raped and killed [the victim].”

    Jackson was charged with first-degree murder, sexual battery
with great force, and several other offenses. He pled guilty to the
murder and the sexual battery charges, and in exchange, the State
agreed not to seek the death penalty 2 for the murder and nol



    This was long before the Supreme Court decided in Roper v.
    2

Simmons, 543 U.S. 551 (2005), that the Eighth Amendment
                                 3
prossed the other charges. The trial court adjudicated Jackson
guilty and sentenced him to life in prison for the murder followed
by 15 years in prison for the sexual battery.

     In 2016, Jackson filed a rule 3.800(a) motion in which he
argued that his life sentence was illegal under Miller v. Alabama,
567 U.S. 460 (2012). The trial court granted the motion and held
a resentencing hearing pursuant to section 921.1401. After the
hearing, the court entered a detailed sentencing order re-imposing
the life sentence for the murder with a sentence review after 25
years pursuant to section 921.1402(2)(a), Florida Statutes. 3

    This appeal followed.

                             Analysis

     We review the findings in the trial court’s sentencing order to
determine whether they are supported by competent substantial
evidence, see Hernandez v. State, 2018 WL 2224109, at * 3 (Fla. 3d
DCA May 16, 2018); Hadley v. State, 190 So. 3d 217, 218 (Fla. 4th
DCA 2016), and we review the court’s ultimate sentencing decision
based on these findings for an abuse of discretion. See Simmons v.
State, 2019 WL 1065396, at *1 (Fla. 1st DCA Mar. 7, 2019)
(explaining that the factors in section 921.1401(2) are not elements
of the offense but rather are sentencing factors for the court to
consider “when exercising its discretion” to impose a life or term-
of-years sentence).

    In Miller, the Supreme Court held that the Eighth
Amendment precludes mandatory life without parole sentences for
juvenile murders, but the Court did not foreclose the possibility
that a life sentence could be imposed on a juvenile murderer in
appropriate circumstances. See 567 U.S. at 465, 479-80. The


prohibits the imposition of the death penalty on juvenile
murderers.
    3 The court also re-imposed the consecutive 15-year prison
sentence for the sexual battery. Jackson does not challenge that
sentence on appeal.

                                 4
Court explained that “a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest
possible penalty for juveniles.” Id. at 489.

     In response to Miller, the Legislature enacted section
921.1401. The statute requires the trial court to “consider factors
relevant to the offense and the defendant’s youth and attendant
circumstances” when determining whether a life sentence is
appropriate for a juvenile murderer. § 921.1401(2), Fla. Stat.; see
also Fla. R. Crim. P. 3.781(c)(1) (requiring the trial court to make
specific findings that all relevant factors have been “reviewed and
considered”). The statute lists ten non-exclusive factors the court
must consider in making its determination, including the nature
and circumstances of the offense and the defendant’s family
background, maturity level, intellectual capacity, mental health
issues, and potential for rehabilitation. § 921.1401(2)(a)-(j), Fla.
Stat.

     Here, although not required to do so, 4 the trial court made
detailed findings on each of the factors in section 921.1401(2). Of
particular significance, the court found that “this case is unlike
any case the community of High Springs ... had experienced before,
or since” and that Jackson’s actions “reveal something much more
than transient immaturity of youth.” The court further explained
that it was “not convinced that youth, educational limitations, or
lack of normal functioning family are at the root cause of the terror,
violence, and premeditation exhibited in this case” and that
Jackson “is among the rarest of juvenile offenders, those whose
crimes reflect permanent incorrigibility.” These findings are
supported by competent substantial evidence, and based on the
findings, we find no abuse of the trial court’s discretion in its
determination that a life sentence was appropriate in this case.

    We have not overlooked Jackson’s argument that because he
was eligible for a sentence review hearing at the time of his
resentencing hearing, the trial court should have given greater
weight to the evidence of his maturity and rehabilitation as

    4  See Dortch v. State, 2019 WL 639221, at *3 (Fla. 1st DCA
Feb. 15, 2019).

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demonstrated by his relatively clean disciplinary record and
involvement in self-betterment activities while in prison. We find
this argument unpersuasive for several reasons. First, the hearing
below was solely a resentencing hearing under section 921.1401,
not a sentence review hearing under section 921.1402. 5 Second, it
is the responsibility of the trial court (not this court) to determine
the weight to be given to the factors in section 921.1401(2). Third,
although the defendant’s rehabilitation is the sole focus of a
sentence review hearing under section 921.1402, it is only one of
the many factors that the court is to consider in a sentencing
hearing under section 921.1401. Fourth, it is clear from the
findings in the sentencing order that the court was not persuaded
that Jackson was rehabilitated and fit to reenter society.

                            Conclusion

    For reasons stated above, Jackson’s sentence is AFFIRMED.

RAY and WINSOR, JJ., concur.

                  _____________________________

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


Andy Thomas, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

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

    5  If the hearing below had been a sentence review hearing,
then Jackson would not be entitled to another one in the future
because section 921.1402 provides for only one sentence review
hearing for juvenile murderers. See § 921.1402(2)(a), Fla. Stat. (“A
juvenile offender sentenced under s. 775.082(1)(b)1. is entitled to
a review of his or her sentence after 25 years.”) (emphasis added).

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