         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


JACKSON STALLINGS,

             Appellant,

 v.                                                    Case No. 5D16-1448

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed August 19, 2016

3.850 Appeal from the Circuit
Court for Orange County,
Robert J. Egan, Judge.

Jackson Stallings, Jasper, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      Jackson Stallings ("Appellant") appeals the lower court’s order summarily denying

his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure

3.850. In light of Atwell v. State, 41 Fla. L. Weekly S244 (Fla. May 26, 2016), which was

decided after the lower court ruled, we reverse and remand for the postconviction court

to hold an evidentiary hearing to determine whether Appellant is entitled to resentencing
pursuant to Horsley v. State, 160 So. 3d 393 (Fla. 2015), and chapter 2014-220, Laws of

Florida.

       In 1973, when Appellant was seventeen years old, he pleaded guilty to sexual

battery, robbery, and assault with the intent to commit a felony. He was sentenced to life

imprisonment on the sexual battery charge because sexual battery was a capital offense

at that time. See § 784.01(1), Fla. Stat. (1972). He was sentenced to fifteen years

imprisonment for the robbery charge, followed by a consecutive five-year term for the

assault charge with intent to commit a felony charge. Both sentences were ordered to

run concurrently with Appellant’s life sentence. Appellant was not sentenced to life

without the possibility of parole.

       The Florida Supreme Court recently held that a life sentence with the possibility of

parole for a juvenile convicted of homicide violated the Eighth Amendment because

Florida’s statutory parole system does not afford the individualized consideration for

juvenile defendants required by Miller v. Alabama, 132 S. Ct. 2455 (2012). Atwell, 41 Fla.

L. Weekly at S248. Under our parole system, a convicted juvenile defendant is given a

hearing by the Commission on Offender Review. Id. at S247.              The Commission

determines a presumptive parole date, which is the juvenile's earliest possible release

date from prison. Id. In making its determination, the Commission utilizes objective parole

guidelines that give primary weight to the seriousness of the offender’s present offense

and prior criminal record. Id. These guidelines, however, do not factor in the so-called

diminished culpability of youth. Id. at S247-48. Since the offender’s presumptive parole

date can be scheduled for decades beyond a natural lifespan, a life sentence with the




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possibility of parole may be the practical equivalent of a life sentence without the

possibility of parole. Id. at S247.

       In 1999, following a review, the Commission established Appellant's presumptive

parole release date as December 11, 1999; however, that release date was suspended

as a result of an "Extraordinary Review," which discussed a number of infractions accrued

by Appellant during his incarceration. The Commission indicated that another review

would be conducted in July 2004. We cannot determine from the record whether the

Commission conducted a review in July 2004 and a new presumptive release date was

ever calculated, or whether Appellant remains in limbo under the suspended 1999 release

date. With the uncertainty of his release date and no information about any future

reviews, there is a likelihood that the now sixty-one-year-old Appellant will spend the rest

of his life in prison without ever having the “meaningful opportunity for early release.”

Henry v. State, 175 So. 3d 675, 680 (Fla. 2015) (citing Graham v. Florida, 560 U.S. 48,

75 (2010)).

       Because the Florida Supreme Court has stated that Florida’s parole system is

incompatible with the mandate of Miller, the postconviction court’s reliance on the

Extraordinary Review is no longer sufficient to conclude that Appellant is not eligible for

resentencing. Atwell, 41 Fla. L. Weekly at S244. Accordingly, we 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.              On remand, the

postconviction court shall also determine whether, in light of Atwell, Appellant must be




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resentenced pursuant to chapter 2014-220, Laws of Florida, as discussed in Horsley.

See Horsley, 160 So. 3d at 395.


      REVERSED AND REMANDED.

TORPY and LAMBERT, JJ., concur.




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