       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       TYLER JOSEPH HADLEY,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-1228

                             [April 27, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562011CF002340A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Tyler Hadley entered an open plea to two counts of first-
degree murder with a weapon (a hammer) in relation to the murder of his
parents while Appellant was seventeen years old, still a juvenile. He was
convicted and sentenced to two consecutive life sentences without the
possibility of parole in early 2014.

   The Supreme Court’s 2012 decision in Miller v. Alabama held that
“mandatory life without parole for those under the age of 18 at the time of
their crimes violated the Eighth Amendment’s prohibition on ‘cruel and
unusual punishments.’” Miller, 132 S. Ct. 2455, 2460 (2012). As a result,
the State of Florida’s juvenile sentencing scheme was forced to undergo a
complete overhaul, with the Legislature ultimately adopting a
comprehensive new sentencing plan that was later made retroactive by the
Supreme Court of Florida in Horsley v. State, 160 So. 3d 393 (Fla. 2015).

   Appellant was sentenced during the period of time between the Court’s
decision in Miller and the Legislature’s passage of the new sentencing
scheme. Because Appellant was sentenced during this transitional period,
the trial court was forced to operate with little concrete guidance as to the
sentencing options available for Appellant. While the trial court did an
admirable job in anticipating the requirements of the new statutory
system, we nonetheless must reverse Appellant’s sentence and remand for
the trial court to consider the new sentencing requirements. We affirm
without discussion Appellant’s other challenge on appeal, related to
testimony by both parties’ experts that referenced the testing results of
another expert who did not testify.

                                 Background

    Appellant was seventeen years, five months old when he killed his
parents. As noted above, he pled no contest to both counts of first-degree
murder with a weapon and the entire two weeks of hearings in this case
were devoted to sentencing. Given the unsettled state of the law at the
time, the trial court believed it had two options for sentencing Appellant:
life without parole or, using the theory of statutory revival, life with a
mandatory minimum of twenty-five (25) years. After listening to extensive
testimony from family members, friends, and numerous expert witnesses,
the trial court sentenced Appellant to two consecutive terms of life
imprisonment without the possibility of parole.

                                 Analysis

   “The legality of a sentence is a question of law and is subject to de novo
review.” Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005).
However, the trial court’s findings on aggravating or mitigating factors are
reviewed for competent substantial evidence. See Martin v. State, 107 So.
3d 281, 318-19 (Fla. 2012). In this case, the trial court made two errors
that require reversal and resentencing. First, the trial court made an
incorrect finding of fact as to Appellant’s prior criminal history. Second,
the trial court incorrectly applied the theory of statutory revival when
considering possible sentences for Appellant.

   As discussed above, Florida has adopted a new sentencing scheme for
juvenile defendants who commit capital felonies. Codified in sections
775.082, 921.1401, and 921.1402, Florida Statutes (2014), this new
legislation provides, in part, that a juvenile defendant who commits a
capital felony shall be punished by either a life sentence or by a term of at
least forty years. § 755.082(1)(b)1. In determining if a life sentence is
appropriate, the trial court should conduct a hearing, considering “factors
relevant to the offense and the defendant’s youth and attendant
circumstances,” including the factors enumerated in section

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921.1401(2)(a)-(j). § 921.1401(2). Under section 921.1402(2)(a), “[a]
juvenile offender sentenced under s. 755.082(1)(b)1. is entitled to a review
of his or her sentence after 25 years,” unless he or she was previously
convicted, as “part of a separate criminal transaction or episode,” of one of
the crimes listed in that section. As noted earlier, this new sentencing
scheme has been made retroactive by the Supreme Court of Florida in
Horsley v. State.

    In this case, the trial court properly considered the factors enumerated
in section 921.1401(2)(a)-(j) when determining the appropriate sentence
for Appellant.      However, the trial court found that Appellant had
committed a prior capital felony. There was no support for such a finding
in the record. In fact, the only capital felonies committed by the Appellant
were the ones for which he was being sentenced, which were part of the
same “criminal transaction or episode.” For the trial court to consider
these crimes as part of Appellant’s “prior criminal history,” as required in
section 921.1401(2)(h), was erroneous.

    Additionally, the trial court mistakenly (in hindsight) believed its
options for sentencing were either life without parole or to apply statutory
revival and sentence Appellant to life with a mandatory minimum of 25
years. The Supreme Court has specifically held that statutory revival is
inappropriate in these cases. Horsley, 160 So. 3d at 395. Instead, the
trial court’s alternative to a life sentence would be sentencing Appellant to
a term of “at least 40 years.” § 755.082(1)(b)1. Although the trial court
clearly believed a mandatory minimum of twenty-five years was
insufficient, it did not have the option of a term of at least forty years to
consider as a more appropriate sentence than life without the possibility
of parole. Therefore, this matter is remanded for the purpose of the trial
court resentencing Appellant with the correct options before it.

                                 Conclusion

    The trial court made a finding of fact (that Appellant had a prior
criminal history) that was unsupported by the record. Additionally, the
trial court did not consider the correct alternative to a life sentence. We
are therefore compelled to reverse and remand for resentencing. We
further note that any new sentence under section 775.0821(1)(b)1. is
subject to review after twenty-five years, as required by section
924.1402(2)(a).

   Reversed and remanded for resentencing.

STEVENSON and GROSS, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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