        Third District Court of Appeal
                                 State of Florida

                            Opinion filed May 31, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D16-1051
                            Lower Tribunal No. 79-2443
                               ________________

                                    Gary Reid,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Lisa Walsh,
Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.

Before LOGUE, SCALES, and LUCK, JJ.

      LUCK, J.

      This is yet another post-Miller v. Alabama, 567 U.S. 460 (2012) case where

a Florida state prisoner is challenging his life sentence because he was a juvenile at
the time he committed his crime. The trial court, correctly, based on binding

precedent at the time it issued its order, denied Gary Reid’s post-conviction motion

because he was parole eligible after twenty-five years. Now that the law has

changed, we must reverse and remand for a resentencing pursuant to section

921.1401 of the Florida Statutes.

      On March 20, 1979, Reid entered into a negotiated guilty plea to the charges

of first-degree murder, attempted armed robbery, and possession of a firearm while

engaged in a criminal offense committed when Reid was seventeen years old. The

plea was entered in exchange for a sentence of life in prison, with parole eligibility

after twenty-five years, and a concurrent fifteen-year prison term. Reid was first

interviewed by the Florida Parole Commission on August 20, 2002, when he was

forty-one years old and was within eighteen months of satisfying the twenty-five

year mandatory portion of his sentence. After considering his institutional record,

the commission set Reid’s presumptive parole release date for February 3, 2016.

Subsequent hearings before the commission resulted in the extension of Reid’s

presumptive parole release date due to disciplinary problems; it has now been

extended to February 3, 2028.

      Reid moved the trial court for relief under Miller, arguing that he was a

juvenile when he committed the murder, he was sentenced to a mandatory life

sentence, and even though he was parole eligible the Florida parole system did not


                                          2
take into account children’s diminished culpability and heightened capacity for

change as required by the Supreme Court.1 The State filed a response arguing that

because he was eligible for parole Reid’s sentence did not violate Miller. Based on

this court’s decision in Cunningham v. State, 54 So. 3d 1045 (Fla. 3d DCA 2011),2

the trial court denied Reid’s motion.

      The Florida Supreme Court decided Atwell v. State, 197 So. 3d 1040 (Fla.

2016) in May 2016, one month after the trial court’s order in this case. In Atwell,

the Florida Supreme Court explained that “[t]he current parole process . . . fails to

take into account the offender’s juvenile status at the time of the offense, and

effectively forces juvenile offenders to serve disproportionate sentences of the kind

forbidden by Miller.” Id. at 1042. The Atwell Court continued: “In most respects,

a sentence of life with the possibility of parole for first-degree murder, based on

1 Reid’s motion also claimed the trial court lacked jurisdiction to accept his guilty
plea because he was a juvenile at the time. Reid has not appealed the trial court’s
denial of this claim, and therefore, we do not discuss it any further.
2 In Cunningham, we affirmed the summary denial of the defendant’s Graham v.

Florida claim because he was “statutorily entitled to parole consideration,” and
“his Presumptive Parole Release Date is in 2026 and his next parole reinterview is
in 2013.” Cunningham, 54 So. 3d at 1046; see also Atwell v. State, 128 So. 3d 167,
169 (Fla. 4th DCA 2013), decision quashed, 197 So. 3d 1040 (Fla. 2016) (“[W]e
conclude that Miller is inapplicable because Miller applies only to a mandatory
sentence of life without the possibility of parole. . . . Appellant was not sentenced
to life without the possibility of parole for his murder conviction. The sentencing
scheme in place at the time of appellant’s offense did not require a mandatory
sentence of life without parole for the murder. Miller is inapplicable, and appellant
would not be entitled to relief even if Miller applies retroactively”).



                                         3
the way Florida’s parole process operates under the existing statutory scheme,

actually resembles a mandatorily imposed life sentence without parole that is not

‘proportionate to the offense and the offender.’” Id. at 1048 (citation omitted).

“Parole,” the Court said, “is, simply put, ‘patently inconsistent with the legislative

intent’ as to how to comply with Graham and Miller.” Id. at 1049 (citation

omitted). The Court concluded: “We conclude that Florida’s existing parole

system, as set forth by statute, does not provide for individualized consideration of

[the defendant’s] juvenile status at the time of the murder, as required by Miller,

and that his sentence, which is virtually indistinguishable from a sentence of life

without parole, is therefore unconstitutional.” Id. at 1041.

      The Florida Supreme Court’s holding in Atwell would seem to be the end of

the story for Reid. Reid, like the Atwell defendant, was sentenced for first degree

murder to life imprisonment with the possibility of parole after twenty-five years.

Reid, like the Atwell defendant, was subject to Florida’s parole system. If the

parole system did not account for individual consideration of the Atwell

defendant’s juvenile status, and the Atwell defendant’s life-with-parole sentence

was indistinguishable from life-without-parole, then the same parole system as part

of the same sentence for the same crime should be unconstitutional for Reid.

      The state, however, attempts to distinguish this case from Atwell by arguing

that: (1) in entering into a negotiated plea, Reid waived any defect in his sentence;


                                          4
and (2) unlike the Atwell defendant, Reid had a presumptive parole release date

within his lifetime. The decisions of this court and others say these are distinctions

without a difference.

      As to the state’s first argument, for example, we have reversed trial court

orders denying Miller post-conviction claims, and remanded for resentencing,

where the defendant, like Reid, received a life sentence as a result of a guilty plea

rather than from trial.   See, e.g., Brown v. State, No. 3D15-2759, 2017 WL

927810, at *1 (Fla. 3d DCA Mar. 8, 2017) (“Appellant Freddy Brown pled guilty

to second degree murder for a murder he committed in 1980, when he was

seventeen years old. His sentencing hearing did not take into consideration his

status as a juvenile offender. Brown was sentenced to life imprisonment with

parole. He remains imprisoned due to a record of unsatisfactory institutional

conduct. . . . The trial court denied Brown’s rule 3.850 motion. We reverse

Brown’s life sentence and remand for an appropriate resentencing.”); Wadley v.

State, 178 So. 3d 424, 424-25 (Fla. 3d DCA 2015) (“The State and Wadley

subsequently entered into a plea agreement in which the State waived the

imposition of the death penalty in exchange for Wadley’s agreement to a life

without parole sentence for the first-degree murder charge, and thirty years in

prison for the attempted armed robbery charge. . . . Accordingly, we vacate the life

sentences for both the homicide and non-homicide offenses, and on remand,


                                          5
Wadley must be resentenced pursuant to chapter 2014–220, Laws of Florida.”

(footnote omitted)). So, too, have our sister district courts of appeal. See, e.g.,

Tarrand v. State, 199 So. 3d 507, 508-09 (Fla. 5th DCA 2016) (“[Defendant]

entered a negotiated plea to second-degree murder, which was committed in 1993

when he was fifteen years old. In his motion, he argued that his fifty-one-year

sentence is a de facto life sentence that does not provide a meaningful opportunity

for early release, and therefore, is unconstitutional under the holdings of Miller and

Graham. . . . [H]e must be resentenced in light of the new juvenile sentencing

legislation now codified at sections 775.082, 921.1401 and 921.1402, Florida

Statutes, to allow him a meaningful opportunity to obtain early release based upon

demonstrated maturity and rehabilitation.” (citations omitted)); Cotto v. State, 141

So. 3d 615, 616, 620 (Fla. 4th DCA 2014) (“Cotto entered a negotiated plea with

the state which agreed to waive the death penalty. The court sentenced Cotto to

two consecutive life sentences for first-degree murder in counts one and two. . . .

The trial court[] erred in denying the postconviction motion[] on appeal . . . . We

must reverse and remand for further proceedings.”). The courts, ours and others,

have not distinguished between pre-Miller sentences that were imposed pursuant to

a plea agreement, and those that were imposed after a trial. As Reid’s counsel put

it at oral argument, how could Reid, in 1979, waive a right to a Miller resentencing

at his plea hearing when that right did not exist until at least 2012?


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      As to the state’s second argument, we read Atwell to reject the notion that

Florida’s current parole scheme provides the individualized consideration of a

defendant’s juvenile status required under Miller. See Atwell, 197 So. 3d at 1042

(“The current parole process similarly fails to take into account the offender’s

juvenile status at the time of the offense, and effectively forces juvenile offenders

to serve disproportionate sentences of the kind forbidden by Miller.”); see also id.

at 1049 (“Parole is, simply put, patently inconsistent with the legislative intent as

to how to comply with Graham and Miller.” (quotation omitted)). Since Atwell,

and applying its holding, we have reversed trial court orders denying Miller post-

conviction claims even where, as in Reid’s case, the presumptive parole release

date was within the defendant’s lifetime. See, e.g., Carter v. State, No. 3D16-

1090, 2017 WL 1018513, at *1 (Fla. 3d DCA Mar. 15, 2017) (“Notwithstanding

the fact that he will be reevaluated for the possibility of parole in 2022, we

conclude the defendant is correct and that he is entitled to resentencing under

sections 775.082(3)(c) and 921.1401.”); Miller v. State, 208 So. 3d 834, 835 n.1

(Fla. 3d DCA 2017) (“The State’s contention that Miller was parole-eligible as

early as twelve years after the commission of first-degree murder is irrelevant.”).3

3 But see Stallings v. State, 198 So. 3d 1081, 1083 (Fla. 5th DCA 2016) (“[W]e
reverse the order summarily denying Appellant’s rule 3.850 motion and remand for
the postconviction court to hold an evidentiary hearing to determine Appellant’s
presumptive parole release date and the Commission’s recommendations for his
parole release.”); Williams v. State, 198 So. 3d 1084, 1086 (Fla. 5th DCA 2016)
(“[I]t is unclear whether Williams’ PPRD places him outside the relief afforded by
                                          7
      We do so here, too. We reverse the trial court’s order denying Reid’s

motion for post-conviction relief and remand for a resentencing pursuant to section

921.1401.

      Reversed and remanded with instructions.




Miller and Atwell. The date could be right around the corner or long after
Williams’ life expectancy. . . . Accordingly, in light of Atwell, we reverse the
order under review and remand for the trial court to determine whether Williams’
PPRD and Commission Review Recommendation for parole release implicates
resentencing pursuant to Horsley and chapter 2014–220, Laws of Florida.”). The
Fourth District has certified conflict with the Stallings and Williams cases “to the
extent that those decisions suggest that relief under Atwell is dependent on the
defendant’s presumptive parole release date.” Michel v. State, 204 So. 3d 101, 101
(Fla. 4th DCA 2016). The Florida Supreme Court accepted jurisdiction to review
the conflict. State v. Michel, Case No. SC16-2187 (Fla. Jan. 18, 2017).
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