           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2935
                 _____________________________

DESHAWN HURST,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.

                       November 6, 2018


ROWE, J.

     Deshawn Hurst appeals his judgment and sentence for
attempted first-degree premeditated murder with a firearm.
Hurst was 17 years old at the time of the offense. 1 The trial
testimony demonstrated that Hurst, whose identity was concealed
under a mask, carjacked and kidnapped the 21-year-old victim at
gunpoint. Hurst forced the victim into the trunk of a vehicle and
drove the victim to several unknown locations before reaching a


    1 In addition to attempted first-degree premeditated murder
with a firearm, Hurst was charged with carjacking with a firearm,
kidnapping with a firearm, and sexual battery with a deadly
weapon.
final destination. Hurst then raped the victim twice at gunpoint,
shot the victim at close range in the head, and left the victim alone
to die. Hours later, the victim was found and transported to a
hospital where he miraculously survived.             DNA evidence
confirmed that Hurst was the person who committed the offenses.
Hurst was found guilty as charged.

      For the charge of attempted murder, Hurst was sentenced to
life imprisonment with a 25-year mandatory-minimum sentence
and a 25-year sentence review. After filing a motion to correct
sentencing error in the lower court, Hurst appealed his sentence,
arguing he was entitled to a review of his sentence after 20 years,
as opposed to 25 years. We disagree and affirm.

     Our review is de novo. Ray v. State, 68 So. 3d 346, 347 (Fla.
1st DCA 2011). Hurst seeks relief under the juvenile sentencing
laws enacted in 2014. Ch. 2014-220, § 1-3 Laws of Fla. These laws
allow defendants who were sentenced for offenses committed as a
juvenile to obtain judicial review of their sentence after 15, 20, or
25 years depending on the nature of the offense. See §§ 775.082
and 921.1402, Fla. Stat. (2016).

      Here, the trial court found that Hurst was entitled to review
of his sentence after serving 25 years for his conviction for
attempted murder pursuant to section 775.082(3)(a)5.a. 2 Under
subsection (3)(a)5.a., a person who is convicted under section
782.04 and sentenced to a term of imprisonment of more than 25
years, and who “actually killed, intended to kill, or attempted to
kill the victim,” is entitled to a review of his or her sentence after
25 years. §§ 775.082(3)(a)5.a., 921.1402(2)(b), Fla. Stat. (2016).

    2  First-degree murder is a capital felony, and attempted first-
degree murder is a felony of the first degree. §§ 774.04(1), (4)(b);
782.04(1)(a), Fla. Stat. (2016). If attempted first-degree murder is
committed with a weapon or firearm, the offense is reclassified to
a life felony.      § 775.087(1), Fla. Stat. (2016).        Section
775.082(3)(a)5., Florida Statutes, sets forth the penalty for a
conviction under section 782.04 of an offense that was reclassified
as a life felony, when the offender was a juvenile when the crime
occurred.

                                  2
Hurst argues that he should have been sentenced under section
775.082(3)(c) instead, which provides for a review of his sentence
after 20 years. §§ 775.082(3)(c), 921.1402(2)(d), Fla. Stat. (2016).
He advances two arguments in support of his theory.

     First, Hurst disputes that he was convicted under section
782.04. He contends that he was actually convicted under section
777.04, therefore section 775.082(3)(a)5. does not apply to him, and
he is entitled to review of his sentence after 20 years. Hurst cites
no authority to support his contention nor can he. A person cannot
be convicted of the offense of attempt without necessarily proving
the elements of some underlying, substantive offense. See
generally § 777.04(1), Fla. Stat. (2016) (“A person who attempts to
commit an offense prohibited by law and in such attempt does any
act toward the commission of such offense, but fails in the
perpetration or is intercepted or prevented in the execution
thereof, commits the offense of criminal attempt.” (emphasis
added)). Here, the underlying offense committed by Hurst was
first-degree premeditated murder under the homicide statute,
making his conviction and sentence subject to the sentencing
provisions of section 775.082(3)(a)5.

     Second, notwithstanding the fact that he was convicted under
the homicide statute, Hurst nevertheless argues that because
attempted murder is a “nonhomicide offense” for the purposes of
applying Graham, 3 he is entitled to a review of his sentence after
20 years. Gridine v. State, 175 So. 3d 672, 674 (Fla. 2015) (finding
Graham applied to appellant’s case because attempted first-degree
murder is a nonhomicide offense). Hurst’s argument ignores the
plain language of the Florida juvenile sentencing laws. The
language of section 775.082 is crystal clear—a juvenile offender
convicted under section 782.04 is entitled to review of his or her
sentence after 25 years where the juvenile offender “actually
killed, intended to kill, or attempted to kill the victim.” § 775.082,
Fla. Stat. (2016) (emphasis added). This specific language
referring to attempt is repeated throughout the statute and applies

    3  Graham v. Florida, 560 U.S. 48 (2010) (holding that a
juvenile offender who did not commit a homicide offense may not
be sentenced to life without parole).

                                  3
whether the underlying conviction is for a capital felony, a life
felony, or a first-degree felony.          See §§ 775.082(1)(b)1.,
775.082(3)(a)5., 775.082(3)(b)2., Fla. Stat. (2016). Further, section
775.082 does not distinguish between “homicide” and
“nonhomicide” offenses. Because Hurst was convicted under
section 782.04, attempted to kill the victim, and used a weapon or
firearm, section 775.082(3)(a)5.a. applies, and he is entitled to a
review of his sentence only after serving 25 years. As the trial
court aptly noted, “[Hurst] is not entitled to apply for sentencing
review five years early . . . merely because his victim survived the
attempted murder.”

     Accordingly, we hold that the trial court properly sentenced
Hurst under section 775.082(3)(a)5.a. See Hernandez v. State,
2018 WL 2224109 *5 (Fla. 3d DCA May 16, 2018) (holding that
under the juvenile sentencing laws, a juvenile convicted for
attempted murder is entitled to review of his sentence after 25
years); Davis v. State, 199 So. 3d 546, 550-51 (Fla. 4th DCA 2016),
review granted, decision quashed on other grounds, SC16-1905,
2018 WL 480516 (Fla. Jan. 19, 2018) (noting that if the 2014
juvenile sentencing laws applied to appellant, he would be entitled
to sentence review after 25 years because he attempted to kill the
victim). Hurst’s judgment and sentence are AFFIRMED.

WETHERELL and WINOKUR, JJ., concur.

                  _____________________________

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


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

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.



                                 4
