         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-1830
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JULIAN LAMONT FOSTER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.

                        January 8, 2019


PER CURIAM.

    On June 30, 1995, following a jury trial, Appellant was
sentenced for six offenses committed while he was a juvenile. He
moved for post-conviction relief as to two of his sentences
contending that those sentences were unconstitutional pursuant
to Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama,
567 U.S. 460 (2012).

    In an order filed April 5, 2016, the trial court granted
Appellant post-conviction relief in part and ordered that
Appellant be resentenced on count twenty-one, armed robbery
with a firearm, since Appellant’s life sentence without parole for
a nonhomicide offense was unconstitutional pursuant to Graham.
The trial court denied Appellant’s motion for post-conviction
relief to the extent that it challenged his life sentence for count
43, second-degree murder. The trial court ruled, consistent with
then binding case law, that since the life sentence was
discretionary not mandatory, Miller did not apply. See Mazer v.
State, 152 So. 3d 20 (Fla. 2d DCA 2014), and Mason v. State, 134
So. 3d 499 (Fla. 4th DCA 2014), disapproved of by Landrum v.
State, 192 So. 3d 459 (Fla. 2016).

     Appellant appealed the denial of his post-conviction relief as
to the second-degree murder sentence. The appeal was stayed by
this court while the Florida Supreme Court considered Landrum.
In Landrum, the Court noted that “Miller requires a sentencer to
consider a juvenile offender’s youth and attendant characteristics
before determining that life without parole is a proportionate
sentence.” Landrum, 192 So. 3d at 465 (quoting Montgomery v.
Louisiana, 136 S. Ct. 718, 735 (2016)). The Court in Landrum
therefore reversed a discretionary sentence of life without
possibility of parole following a conviction for second-degree
murder.

    As the State appropriately acknowledges, the holding in
Landrum applies to Appellant’s sentence for second-degree
murder, and he is entitled to be resentenced. * We therefore
reverse and remand for resentencing pursuant to Landrum.

    REVERSED and REMANDED.

ROWE, BILBREY, and WINSOR, JJ., concur.




    * During the pendency of the instant appeal, the trial court
purported to grant on the authority of Landrum Appellant’s
motion to correct sentencing error filed pursuant to rule
3.800(b)(2), Florida Rules of Criminal Procedure. However, we
have previously held that rule 3.800(b) “was designed for use only
in a direct appeal from the sentence at issue.” Cooper v. State,
919 So. 2d 516, 519 (Fla. 1st DCA 2005).

                                2
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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Brooke Moody, Attorney General, Tallahassee, Kaitlin
Weiss, Assistant Attorney General, for Appellee.




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