         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


KENDALL YOUNG,

             Appellant,

 v.                                                    Case No. 5D16-1610

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 12, 2017

Appeal from the Circuit Court
for Orange County,
Keith A. Carsten, Judge.

James S. Purdy, Public Defender, and
Thomas J. Lukashow, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

      Kendall Young, a juvenile offender, challenges the constitutionality of the ten-year

mandatory minimum provision of a ten-year prison sentence that he received for

committing the crime of robbery with a firearm, a first-degree felony punishable by up to
life imprisonment.1 Young does not contend that a ten-year prison sentence by itself is

unconstitutional,2 but asserts that pursuant to the United States Supreme Court opinions

in Miller v. Alabama, 132 S. Ct. 2455 (2012), and Graham v. Florida, 560 U.S. 48 (2010),

the imposition of any mandatory minimum sentence upon a juvenile offender violates the

Eighth Amendment’s prohibition against cruel and unusual punishment because such a

sentence precludes the trial court from making any individualized sentencing

considerations and fails to recognize that juveniles have diminished culpability and

greater prospects for reform. Young also raises a second argument, not presented to the

trial court, that Florida’s juvenile sentencing statutes, codified in sections 775.082,

921.1401, and 921.1402, Florida Statutes (2014), “supersede” the provisions of section

775.087(2), that require the imposition of the ten-year mandatory minimum prison

sentence in this case. We disagree with Young’s arguments and, therefore, affirm his

sentence.

       In Graham, the United States Supreme Court held that the Eighth Amendment to

the United States Constitution forbids a sentence of life in prison without parole for a

juvenile offender who did not commit a homicide. 560 U.S. at 74. Two years later, in

Miller, the Court held that a mandatory life sentence without the possibility of parole for

juvenile offenders who commit homicides violates the Eighth Amendment’s prohibition

against cruel and unusual punishment. 132 S. Ct. at 2465. In response to both Graham

and Miller, the Florida Legislature enacted the aforementioned juvenile sentencing



       1   § 812.13(2)(a), Fla. Stat. (2014).
       2Young has not challenged a separate, concurrent ten-year prison sentence that
he received in this case for committing the crime of possession of a firearm by a person
found to have committed a delinquent act.


                                                2
statutes to comply with both cases. Notably, while section 921.1401 requires that the trial

court consider certain designated factors relevant to the offense and to the defendant’s

youth and attendant circumstances in determining whether to impose a sentence of life

imprisonment or a term of years equal to life imprisonment, the statutes do not prohibit

juvenile offenders from receiving lengthy prison sentences.3 See Peterson v. State, 193

So. 3d 1034, 1036 (Fla. 5th DCA 2016). What “they do require [is] that the juvenile

receives a review hearing after a designated number of years based on the crime for

which the juvenile was convicted to allow the sentencing court the discretion to modify

the sentence if the juvenile offender has demonstrated sufficient maturity and reform.” Id.

Depending upon the crime committed, the earliest that the Legislature has provided for a

judicial review hearing for a juvenile offender serving a lengthy sentence is fifteen years.

See § 921.1402(2)(c), Fla. Stat. (2014).

       Our review of the constitutionality of a sentence is de novo. Abrams v. State, 971

So. 2d 1033, 1035 (Fla. 4th DCA 2008) (citing Russ v. State, 832 So. 2d 901, 906 (Fla.

1st DCA 2002)). We reject the argument that the ten-year mandatory minimum sentence

imposed in this case violates the Eighth Amendment as being inconsistent with Miller’s

direction that a judge must have the flexibility to fashion the appropriate sentence for a

juvenile offender, allowing for the consideration of the juvenile’s age. 132 S. Ct. at 2460,

2466-67. Young was adjudicated guilty of a crime for which he faced a maximum

sentence of up to life imprisonment. Because Young was a juvenile offender, he was

entitled to a separate sentencing hearing pursuant to section 921.1401(1) to determine if



       3  Graham specifically recognized that juvenile offenders could remain imprisoned
for life, but held that the Eighth Amendment prohibited states from determining at the
outset that these offenders will never be fit to re-enter society. 560 U.S. at 75.


                                             3
a “term of life imprisonment” is an appropriate sentence. Young, in fact, received this

individualized sentencing hearing. He presented testimony from his two grandmothers

and from an aunt, with each providing the trial court with evidence as to Young’s

background, intellectual capacity, family and home environment, maturity, and his ability

for rehabilitation. Young’s counsel argued for leniency, reminding the court that, for

sentencing purposes, juveniles should be treated differently than adults.

       We find no constitutional error in the trial court’s sentence. The court clearly

allowed for the consideration of Young’s age in fashioning its sentence, as evidenced by

Young receiving the lowest permissible sentence for his crime.4 Although we

acknowledge that the ten-year mandatory minimum sentence required here does limit, to

some extent, the discretion of a trial court in sentencing a juvenile offender, we do not

view this modest limitation as a constitutional infirmity.

       “Reviewing courts . . . should grant substantial deference to the broad authority

that legislators necessarily possess in determining the types and limits of punishments

for crimes . . . .” Solem v. Helm, 463 U.S. 277, 290 (1983). “[T]he length of a sentence

actually imposed for violation of the criminal law is generally a matter of legislative

prerogative.” Morrow v. State, 856 So. 2d 1043, 1044 (Fla. 5th DCA 2003) (citing Hale v.

State, 630 So. 2d 521 (Fla. 1993)). In sentencing juvenile offenders, the Florida Supreme

Court ruled that the constitutional prohibition against cruel and unusual punishment under

Graham is implicated when a juvenile’s sentence lacks a review mechanism that does

not afford him a meaningful opportunity to obtain early release during his or her natural




       4
       And as further evidenced by the fact that, at the time Young committed this crime,
he was on probation on a separate charge of robbery with a firearm.


                                              4
fifteen years before the offender is entitled to a judicial review hearing and possible early

release, did not intend to repeal or otherwise implicate the ten-year mandatory minimum

provisions of section 775.087(2) applicable in this case.

       AFFIRMED.

TORPY, J., and JACOBUS, B. W., Senior Judge, concur.




                                             7
preserved for review. It is generally inappropriate for a party to raise an issue for the first

time on appeal without first presenting it to the trial court. Sunset Harbour Condo. Ass’n

v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (citing Dade Cty. Sch. Bd. v. Radio Station

WQBA, 731 So. 2d 638 (Fla. 1999)). “In order to be preserved for further review by a

higher court, an issue must be presented to the lower court and the specific legal

argument or ground to be argued on appeal or review must be part of that presentation if

it is to be considered preserved.” Id. (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla.

1985)).

         Moreover, we find that even if this issue had been preserved for review, it lacks

merit. First, the repeal of a statute by implication is not favored. Newell v. Fla. Dep’t of

Corr., 42 Fla. L. Weekly D538 (Fla 1st DCA Mar. 3, 2017) (citing Carcaise v. Durden, 382

So. 2d 1236 (Fla. 5th DCA 1980)). Second, “[t]here is a general presumption that later

statutes are passed with knowledge of prior existing laws, and a construction is favored

which gives each one a field of operation, rather than having the former repealed by

implication.” Id. (quoting Oldham v. Rooks, 361 So. 2d 140, 143 (Fla. 1978)). Finally,

although an earlier statute can be impliedly repealed by a later statute, the enactment of

the later statute does not operate to repeal a prior statute by implication unless such is

clearly the legislative intent. Am. Bakeries Co. v. Haines City, 180 So. 524, 529 (Fla.

1938).

         Here, there is no clear indication that when it enacted the juvenile sentencing laws

in 2014, the Florida Legislature intended to affect the ten-year mandatory minimum

provision of section 775.087(2) applicable in this case. A more plausible interpretation is

that the Legislature, by requiring that a juvenile offender’s prison sentence be at least




                                              6
fifteen years before the offender is entitled to a judicial review hearing and possible early

release, did not intend to repeal or otherwise implicate the ten-year mandatory minimum

provisions of section 775.087(2) applicable in this case.

       AFFIRMED.

TORPY, J., and JACOBUS, B. W., Senior Judge, concur.




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