       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                             KEVIN NELMS,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-3089

                          [ January 23, 2019 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 84CF000304B.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Kevin Nelms was convicted of first-degree murder in 1985 for a crime
he committed as a juvenile. He was originally sentenced to life in prison
with the possibility of parole after twenty-five years, but after
postconviction proceedings, he was resentenced to life in prison with
judicial review after twenty-five years. He now appeals the new sentence
imposed at resentencing. We affirm.

   In August 2016, Nelms filed a motion for postconviction relief
requesting a resentencing hearing based on Miller v. Alabama, 567 U.S.
460 (2012) (holding that the Eighth Amendment is violated when a court
imposes on a juvenile homicide offender a mandatory sentence of life in
prison without the possibility of parole), and Atwell v. State, 197 So. 3d
1040 (Fla. 2016) (holding that under Florida’s existing parole system, a
sentence of life with the possibility of parole after twenty-five years is
indistinguishable from a life without parole sentence because Florida’s
parole system does not provide for individualized consideration of a
juvenile’s status at the time of the offense). 1

   After granting the postconviction motion, the trial court held a two-day
hearing, during which the court heard testimony from numerous state
witnesses regarding the heinous nature of the murder and from multiple
defense witnesses regarding Nelms’ rehabilitation in prison. At the end of
the hearing, the court resentenced Nelms to life in prison, with judicial
review after twenty-five years, pursuant to chapter 2014-220, Laws of
Florida, as codified in sections 775.082, 921.1401, and 921.1402 of the
Florida Statutes. The court’s order noted that Nelms could be paroled
prior to the date of the scheduled judicial review.

    On appeal, Nelms argues that his new sentence violates the Eighth
Amendment as established in Graham v. Florida, 560 U.S. 48 (2010), Miller
v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct.
718 (2016), because it does not afford him a meaningful opportunity for
release and because the trial court did not find that he was incorrigible or
irredeemably corrupt to support the imposition of a life sentence.

  We review the constitutionality of a sentence de novo. St. Val v. State,
174 So. 3d 447, 448 (Fla. 4th DCA 2015).

   The Eighth Amendment’s ban against cruel and unusual punishment
is implicated under Graham “when a juvenile nonhomicide offender’s
sentence does not afford any ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation,’ ” because “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.” Henry v. State, 175 So. 3d 675, 679–80 (Fla.
2015) (citing Graham, 560 U.S. at 70–71, 75).

    Under Miller, a violation occurs when a court imposes on a juvenile
offender a mandatory sentence of life in prison without the possibility of
parole in a homicide case. Horsley v. State, 160 So. 3d 393, 399 (Fla.
2015) (citing Miller, 567 U.S. at 489). “The opportunity for release will be
afforded to those who demonstrate the truth of Miller’s central intuition—
that children who commit even heinous crimes are capable of change.”
Montgomery, 136 S. Ct. at 736. However, Miller does not absolutely
foreclose a court from imposing a life sentence in a juvenile homicide case.

1 However, as will be discussed in this opinion, Atwell was later abrogated in
State v. Michel, 43 Fla. L. Weekly S298 (Fla. July 12, 2018).

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Horsley, 160 So. 3d at 398–99 (citing Miller, 567 U.S. at 479–80 & n.8).
Instead, Miller requires the court to first consider the juvenile offender’s
“youth and attendant characteristics” before imposing the uncommon
sentence of life without parole, which is reserved for only the “rare” juvenile
offender “whose crime reflects irreparable corruption.” Horsley, 160 So.
3d at 399 (quoting Miller, 567 U.S. at 479–80, 483).

   It is settled that resentencing in accordance with chapter 2014-220,
Laws of Florida, is the appropriate remedy for a sentence that violates
Miller. See Horsley, 160 So. 3d at 405 (concluding that “applying chapter
2014–220, Laws of Florida, to all juvenile offenders whose sentences are
unconstitutional under Miller is the appropriate remedy”). Here, after the
court found that Nelms’ 1985 sentence violated Miller based on Atwell, the
remedy was to resentence him pursuant to chapter 2014-220, which the
court did. Nelms’ new sentence was not a life sentence without the
possibility of parole or without an opportunity for release based on
maturation and rehabilitation, which places this case outside the apparent
boundaries of Graham, Miller, and Montgomery. In addition, because the
resentencing court did not impose the uncommon sentence of life without
parole, the court did not need to find that Nelms was the rare juvenile
whose crime reflects incorrigibility or irreparable corruption. Nelms was
sentenced to life in prison with judicial review after twenty-five years, in
accordance with chapter 2014-220. Because such a sentence offers an
opportunity for release and cannot be found to be tantamount to a
sentence of life in prison without the possibility of parole, Nelms’ sentence
does not violate Graham, Miller, and similar cases.

    We recently affirmed a defendant’s life sentence imposed after the court
granted him a resentencing hearing and provided for judicial review in
twenty-five years. See Cutts v. State, 225 So. 3d 244 (Fla. 4th DCA 2017).
In Cutts, the defendant was initially sentenced in 1997 to life without
parole for first-degree murder. Id. at 245. He moved for resentencing in
light of Miller, and the state conceded that he was entitled to a new
sentencing hearing as a matter of law. Id. After granting the defendant a
new sentencing hearing pursuant to Miller, the trial court held a hearing
wherein it considered witnesses’ testimony on the defendant’s behalf, the
defendant’s remorse, and the criteria set out in section 921.1401, Florida
Statutes, before imposing the new sentence of life in prison with review
after twenty-five years. Id. On appeal, the defendant argued that his new
sentence violated the Eighth Amendment’s prohibition on cruel and
unusual punishment. Id. at 244. We disagreed and affirmed the new
sentence, noting that the trial court had made express findings in
accordance with section 921.1401. Id. However, we remanded for the trial
court to include those findings in the written sentencing order. Id. at 244–

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45.

    Similarly, we affirm Nelms’ life sentence with review after twenty-five
years, which was imposed upon resentencing. Here, in addition to
considering witnesses’ testimony and Nelms’ remorse, the resentencing
court considered the criteria set forth in section 921.1401, Florida
Statutes, made express findings, and reduced those findings to writing in
its resentencing order, as required by section 775.082(1)(b)3., Florida
Statutes.

    We further note that Nelms’ reliance on Atwell is misplaced. Recently,
the Florida Supreme Court held that a juvenile offender’s sentence of life
with the possibility of parole after twenty-five years does not violate the
Eighth Amendment as described in Graham and Miller, and thus, a
juvenile offender who receives such a sentence is not entitled to
resentencing under section 921.1402, Florida Statutes. State v. Michel,
43 Fla. L. Weekly S298 (Fla. July 12, 2018). In so ruling, the Michel court
departed from in its earlier Atwell decision, which had held that the
juvenile’s sentence of life with the possibility of parole was tantamount to
a life without parole sentence under Florida’s parole system, which failed
to account for individualized sentencing considerations required for
juvenile offenders. Atwell, 197 So. 3d at 1041. As a result, even Nelms’
seemingly more stringent initial sentence of life with the possibility of
parole after twenty-five years would not now be considered a violation of
Miller that would require resentencing under chapter 2014-220.

   Accordingly, we hold that Nelms’ current sentence does not violate
either Graham or Miller and affirm his life sentence with judicial review
after twenty-five years.

   Affirmed.

TAYLOR, CIKLIN and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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