       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         JASPER WASHINGTON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-2537

                              [April 8, 2020]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Mariya Weeks, Judge;
L.T. Case No. 92-009772 CF10A.

  Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

    The defendant appeals from the circuit court’s May 7, 2019 order
rescinding the circuit court’s November 18, 2016 order granting the
defendant’s motion to vacate, set aside, or correct sentence. The defendant
argues the circuit court lacked jurisdiction to rescind the November 18,
2016 order. We agree and reverse the May 7, 2019 order. We remand for
reinstatement of the November 18, 2016 order, and for resentencing. The
resentencing shall be conducted according to the decisional law effective
at the time of the resentencing.

                           Procedural History

   A jury convicted the defendant of first-degree murder (Count I) and
armed robbery with a deadly weapon (Count II), both committed on April
26, 1992, when the defendant was sixteen years old. The circuit court
sentenced the defendant on Count I to life in prison without the possibility
of parole for twenty-five years, and on Count II to seventeen years in
prison, with both sentences to be served concurrently. We affirmed the
defendant’s conviction and sentence.        Washington v. State, 642 So. 2d
1378 (Fla. 4th DCA 1994).

    In 2016, the defendant filed a motion to vacate, set aside, or correct
sentence pursuant to Atwell v. State, 197 So. 3d 1040, 1041-43 (Fla.
2016). Atwell required the resentencing of juveniles sentenced to life in
prison with the possibility of parole, reasoning that Florida’s parole system
does not provide for individualized consideration of juvenile status, as
required by Miller v. Alabama, 567 U.S. 460, 470 (2012), thus making a
sentence of life in prison with the possibility of parole virtually
indistinguishable from a sentence of life in prison without the possibility
of parole. Atwell v. State, 197 So. 3d at 1041. Atwell further required
resentencing to be conducted in conformance with chapter 2014–220,
Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402
of the Florida Statutes. Id. at 1042-43.

   By order dated November 18, 2016, the circuit court granted the
defendant’s motion and ordered resentencing. The state did not timely
seek rehearing or appeal.

    Two years later, during which the defendant’s resentencing remained
pending, the Florida Supreme Court effectively abrogated Atwell in State
v. Michel, 257 So. 3d 3 (Fla. 2018), and Franklin v. State, 258 So. 3d 1239
(Fla. 2018). See Michel, 257 So. 3d at 7-8 (juvenile offenders’ sentences of
life with the possibility of parole after twenty-five years do not violate Miller
and are not entitled to resentencing because they have a meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation under Florida’s parole system after serving twenty-five years
in prison and then if applicable every seven years thereafter); Franklin, 258
So. 3d at 1241 (Florida’s parole process provides juveniles with a
meaningful opportunity to be considered for release during their natural
life, as it includes initial and subsequent parole reviews based upon
individualized considerations before the Florida Parole Commission that
are subject to judicial review).

   Based on Michel and Franklin, the state filed an “amended response” to
the defendant’s motion. The state argued that because the defendant is
parole eligible, his original sentences were legal.

   By order issued May 7, 2019, the circuit court adopted the state’s
amended response, rescinded its November 18, 2016 order granting the
defendant’s motion, summarily denied the defendant’s motion, and
reinstated the defendant’s original sentences.


                                       2
                                This Appeal

   This appeal of the circuit court’s May 7, 2019 order followed. The
defendant argues the circuit court lacked jurisdiction to rescind its
November 18, 2016 order.

   We agree with the defendant’s argument. Similar to our holdings in
several recent cases, we hold the circuit court’s November 18, 2016 order
became final when the state did not timely seek rehearing or appeal of that
order. Jones v. State, 279 So. 3d 172, 174 (Fla. 4th DCA 2019) (citing
Taylor v. State, 140 So. 3d 526, 528-29 (Fla. 2014)); German v. State, 284
So. 3d 572, 573 (Fla. 4th DCA 2019); Scott v. State, 283 So. 3d 1280, 1280-
81 (Fla. 4th DCA 2019); White v. State, 284 So. 3d 1096, 1097 (Fla. 4th
DCA 2019).

   Thus, similar to the relief granted in the foregoing cases, we reverse the
May 7, 2019 order, and remand with directions that the circuit court
reinstate the November 18, 2016 order granting resentencing. See, e.g.,
Jones, 279 So. 3d at 174. The circuit court shall resentence the defendant
to a lawful sentence according to the decisional law effective at the time of
the resentencing. See id. (citing State v. Fleming, 61 So. 3d 399, 408 (Fla.
2011) (“[T]he decisional law in effect at the time of a de novo resentencing
or before that resentencing is final applies to those proceedings . . . .”)).

   While the defendant presents substantive challenges to the current
decisional law, we decline to consider those arguments. See, e.g., Jones,
279 So. 3d at 174.

   Reversed and remanded with instructions.

CONNER and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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