       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         NOELSON ANDREVIL,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D14-4700

                           [August 16, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562008CF003023D.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   This appeal challenges concurrent 35-year prison sentences imposed
on a juvenile offender on resentencing after the United States Supreme
Court decided Graham v. Florida, 560 U.S. 48 (2010), and the Florida
Legislature enacted chapter 2014-220, Laws of Florida. We reverse
appellant’s sentences and affirm as to the other points raised on appeal.

    In 2008, appellant was 17 years old when he was charged as an adult
with attempted armed robbery while wearing a mask (Count I), burglary of
a dwelling with an assault or battery while armed (Count II), robbery with
a weapon while wearing a mask (Count III), and robbery with a deadly
weapon while wearing a mask (Count IV). In 2010, appellant entered a no
contest plea to Counts II–IV and was sentenced to 35 years in prison,
followed by ten years of probation on Counts II and IV, and to 30 years in
prison on Count III, concurrent with the sentences on Counts II and IV.
The state entered a nolle prosequi on Count I.
    Ten days after appellant’s sentence, the United States Supreme Court
decided Graham. Graham held that the Eighth Amendment prohibits life
sentences without parole for juvenile offenders who commit nonhomicide
crimes. Graham, 560 U.S. at 74–75. The Court noted that there were
fundamental differences in development and reasoning between juveniles
and adults, including a juvenile’s (1) lack of maturity and underdeveloped
sense of responsibility; (2) vulnerability to negative influences and outside
pressures; and (3) character that is not as well formed as that of adults.
Id. at 68 (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). The
Court thus held that states must give such juvenile offenders “some
meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.” Id. at 75.

    In light of Graham, in May 2011, appellant moved for postconviction
relief. He argued, among other things, that his trial counsel was ineffective
for failing to inform him that he could have withdrawn his plea due to the
material change in the law following Graham. After an evidentiary hearing,
the trial court ruled that appellant’s trial counsel was ineffective for failing
to file a motion to withdraw appellant’s plea after Graham was decided.

    In August 2014, appellant was 23 years old when he again pled no
contest to the charges against him. This time, appellant pled to armed
burglary with an assault or battery (Count II) and robbery with a deadly
weapon (Count IV). The state nolle prossed Counts I and III. Following
the sentencing hearing, in November 2014, the court adjudicated
appellant and sentenced him to concurrent terms of 35 years in prison,
followed by ten years of probation, with credit for 1,933 days.

   Appellant filed a motion pursuant to Florida Rule of Criminal Procedure
3.800(b)(2) with the sentencing court, arguing that he should have been
sentenced based on the guidelines in Graham and section 921.1402(2)(d),
Florida Statutes (2014). The trial court denied the motion because
appellant’s offense predated the July 1, 2014 offense date stated in section
921.1402, and because appellant’s sentence was not a de facto life
sentence subject to the requirements of Graham.

   On appeal, appellant argues that the 35-year prison sentence, followed
by ten years of probation, does not afford a meaningful opportunity for
early release based on a demonstration of maturity and rehabilitation and,
thus, violates the Eighth Amendment’s ban on cruel and unusual
punishment.

   In appellant’s initial brief, he argued that his concurrent 35-year
sentences constitute a de facto life sentence, based on mortality statistics,

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quality of life measures, and the lack of a meaningful opportunity for
release based on maturity and rehabilitation. As such, appellant argued
that he should be resentenced with retroactive application of the new
juvenile sentencing legislation enacted by the Florida Legislature in
chapter 2014-220, Laws of Florida. 1 See Horsley v. State, 160 So. 3d 393,
395, 404–06 (Fla. 2015) (holding that the appropriate remedy for cases
involving juvenile offenders whose sentences are unconstitutional under
Miller v. Alabama, 567 U.S. 460 (2012) is to apply chapter 2014-220, Laws
of Florida, even if their offenses were committed prior to the legislation’s
effective date).

    During much of the pendency of this appeal, the law in Florida
regarding Graham’s application to term-of-years sentences was uncertain.
Several Florida districts courts, including ours, had concluded that
Graham does not apply to lengthy term-of-years sentences which do not
constitute de facto life sentences requiring resentencing under chapter
2014-220. See, e.g., Davis v. State, 199 So. 3d 546, 550 (Fla. 4th DCA
2016) (holding that a defendant’s 75-year sentence does not constitute a
de facto life sentence because the defendant has a meaningful opportunity
for release during his natural life); Abrakata v. State, 168 So. 3d 25, 251,
251-52 (Fla. 1st DCA 2015) (finding that a juvenile’s 25-year sentence,
day-for-day, does not amount to a de facto life without parole sentence
since the defendant will be in his early forties when he is released from
prison and declining to retroactively apply the sentencing provisions of
chapter 2014-220, Laws of Florida); Austin v. State, 127 So. 3d 1286, 1287
(Fla. 1st DCA 2013) (affirming juvenile’s 45-year mandatory minimum
terms because it did not exceed his life expectancy); Johnson v. State, 108
So. 3d 1153, 1153-54 (Fla. 5th DCA 2013) (Johnson 1) (affirming a
juvenile’s 100-year sentence on a charge of burglary of a dwelling while
armed because a term-of-years sentence does not violate Graham); Thomas
v. State, 78 So. 3d 644 (Fla. 1st DCA 2011) (affirming juvenile’s concurrent
50-year sentences with 25-year mandatory minimums because the
sentence does not amount to a life without parole sentence even though
the juvenile will be in his late sixties when released from prison). But see
Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012) (reversing a juvenile’s
combined 80-year sentence for two counts of armed robbery, concluding



1 The juvenile sentencing provisions in chapter 2014-220 were enacted in 2014
in response to Graham and Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding
that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders”), and provided judicial
review for juvenile offenders who were tried as adults and received prison terms
longer than 20 years.

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that it constitutes the functional equivalent of a life sentence and is
therefore unconstitutional under Graham);.

   In Henry v. State, 175 So. 3d 675 (Fla. 2015), the Florida Supreme
Court quashed the Fifth District’s decision in Henry v. State, 82 So. 3d
1084 (Fla. 5th DCA 2012), which had determined that Graham did not
apply to term-of-years prison sentences because such sentences do not
constitute life imprisonment. Henry, 175 So. 3d at 676. Our supreme
court disagreed with the Fifth District, reasoning that Graham is
implicated when the sentence does not afford any “meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation.” Id.
at 679 (quoting Graham, 560 U.S. at 75). The supreme court concluded
that Henry’s aggregate 90-year sentence, which required him to be
imprisoned until he was at least about 95 years old, did not afford a
meaningful opportunity for release during his natural life, and was
therefore unconstitutional under Graham. Id. at 679–80.

    The Henry court further noted that a de facto life sentence is not a
requirement for review and emphasized that the focus in these cases
should not be on the length of the sentence imposed, but rather on
whether the sentence affords a “meaningful opportunity for early release
based on a demonstration of maturity and rehabilitation.” Id. at 680
(citing Graham, 560 U.S. at 75). The court concluded that “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.” Id. Accordingly, the court remanded
Henry’s cases for resentencing under chapter 2014-220. Id.

   In appellant’s supplemental brief, filed after the Florida Supreme
Court’s decision in Kelsey v. State, 206 So. 3d 5 (Fla. 2016), appellant
argued that a finding of a de facto life sentence was not determinative of
his entitlement to resentencing under chapter 2014-220. He contended
that Kelsey clarified that Graham applies to term-of-years sentences that
may not be equivalent to life sentences and requires that juveniles who are
serving lengthy sentences be given periodic judicial review to determine
whether they can demonstrate maturity and rehabilitation.

   Kelsey held that a juvenile defendant whose original sentence violated
Graham and who was subsequently resentenced prior to July 1, 2014 was
entitled to be resentenced pursuant to the provisions of chapter 2014-220.
Kelsey, 206 So. 3d at 10-11. In Kelsey, the juvenile defendant was
originally sentenced to two life sentences and two concurrent 25-year

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terms for nonhomicide offenses. Id. at 6. After Graham, he was
resentenced to concurrent 45-year sentences. Id. at 7. On appeal, he
asked the court to vacate those sentences and resentence him under the
new juvenile sentencing legislation with a review mechanism, consistent
with the Florida Supreme Court’s decision in Henry. See Kelsey v. State,
183 So. 3d 439, 441 (Fla. 1st DCA 2015). The First District denied his
request for relief, reasoning that his 45-year sentence was not a de facto
life sentence in violation of Graham. Id. at 441–42. As discussed above,
the Florida Supreme Court later disagreed and held that he was entitled
to resentencing and judicial review. Kelsey, 206 So. 3d at 10-11.

   In Kelsey, the Florida Supreme Court explained that its holding in
Henry “was not predicated on the term of the sentence but rather on the
status of, and the opportunity afforded, the offender.” Id. at 9. The court
described its decision in Henry as “unequivocal” and reaffirmed that the
special class of juvenile nonhomicide offenders recognized in Graham
should receive the remedy outlined in Horsley. 2 Id. at 9–10. The court in
Kelsey considered the decisions in Henry, Horsley and Thomas, along with
the Legislature’s intent in passing chapter 2014-220, Laws of Florida, and
determined that “juveniles who are serving lengthy sentences are entitled
to periodic judicial review to determine whether they can demonstrate
maturation and rehabilitation.” Id. at 10-11.

   We recently applied Kelsey to reverse a juvenile’s 45-year sentence. See
O’Neal v. State, 211 So. 3d 303, 304 (Fla. 4th DCA 2017) (holding that a
defendant whose original sentence violated Graham, and who was
subsequently resentenced prior to July 1, 2014, is entitled to be
resentenced pursuant to the provisions of chapter 2014–220, Laws of
Florida). 3

   Recently, the Florida Supreme Court resolved the conflict between
Johnson I and Floyd. See Johnson v. State, 215 So. 3d 1237 (Fla. 2017)
(Johnson II). As mentioned above, in Floyd, the First District reversed a
juvenile’s combined 80-year sentence for two counts of armed robbery,
concluding that the sentence constitutes the functional equivalent of a life

2 In Horsley, our supreme court concluded that applying chapter 2014-220 to all
juvenile offenders whose sentences are unconstitutional under Miller is the
proper remedy to give effect to the commandment of the United States Supreme
Court in Miller. 160 So. 3d at 395, 405.

3 We have also certified to the Florida Supreme Court the question of whether
chapter 2014-220 is triggered by all juvenile sentences that exceed the statutory
threshold, including offenses committed before July 1, 2014. See Davis, 199 So.
3d at 552.

                                       5
sentence and violates Graham. 87 So. 3d at 45–47. By contrast, in
Johnson I, the Fifth District affirmed a juvenile’s 100-year sentence for two
counts of armed robbery, holding that Graham does not apply to term-of-
years sentences. 108 So. 3d at 1153–54. After considering Graham and
its decisions in Henry and Kelsey, the supreme court quashed the Fifth
District’s decision. Johnson II, 215 So. 3d at 1244. The court concluded
that the sentence imposed in Johnson I did not provide the juvenile
nonhomicide offender a meaningful opportunity for early release based on
maturity and rehabilitation during his natural life. Id.

   Based on Johnson II and the rationale underlying Henry and Kelsey,
we conclude that appellant must be afforded periodic review under chapter
2014-220, Laws of Florida. Johnson II stated that its holding in Henry
“was not predicated on the term of the sentence, but on the status of, and
the opportunity afforded, the offender.” 215 So. 3d at 1240. Johnson II
noted that the length of the sentence alone is not dispositive because “any
term of imprisonment for a juvenile is qualitatively different than a
comparable period of incarceration is for an adult.” Id. at 1239–40 (citing
Henry, 175 So. 3d at 680). Johnson II further disagreed that gain time
could satisfy the requirements of Graham because this avenue of early
release is not adequately based on a juvenile’s demonstration of maturity
and rehabilitation. Id. at 1239, 1242.

    In Johnson II, the supreme court further clarified its position in Kelsey
that Graham “does indeed apply to term-of-years sentences” and that such
sentences need not be “de facto life” sentences. Id. at 1240 (quoting
Kelsey, 206 So. 3d at 10). Here, the trial court denied appellant’s
postconviction motion to be sentenced under section 921.1402(2)(d),
Florida Statutes, because his offense predated July 1, 2014 and because
appellant’s 35-year sentence was not a de facto life sentence. However,
like the sentences in Kelsey and Johnson II, appellant’s post-Graham
sentences were based on offenses he committed before the statute’s July
1, 2014 effective date, and while he was a juvenile. Moreover, unlike the
defendant in Kelsey, appellant was resentenced after the July 1, 2014
effective date of chapter 2014-220. We thus conclude that appellant was
entitled to the benefit of the new sentence review statute and a meaningful
opportunity for release based on demonstrated maturity and
rehabilitation, as detailed in Johnson II.

   Accordingly, we reverse appellant’s sentence and remand for
resentencing in accordance with the sentencing procedures set forth in
chapter 2014-220, Laws of Florida, as codified in sections 921.1401 and
921.1402, Florida Statutes.


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  Affirmed in part, Reversed in part and Remanded.

CONNER and FORST, JJ., concur.

                         *        *        *

  Not final until disposition of timely filed motion for rehearing.




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