        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           DENNIS L. HART,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-2468

                              [May 2, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-1997-CF-001467-
BXXX-MB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Senior Assistant Attorney General, West Palm Beach, for appellee.

                                EN BANC

LEVINE, J.

   The issue in this case is whether a 30-year prison sentence for a non-
homicide offense committed when appellant was a juvenile violates the
Eighth Amendment or Graham v. Florida, 560 U.S. 48 (2010). Because we
cannot conclude that the sentence violates the United States Constitution,
we affirm.

   In 1997, appellant entered an open plea to the following offenses
committed when he was 16 years old: burglary of a dwelling while armed
with a firearm (count I), robbery with a firearm (counts II-VI), and
attempted robbery with a firearm (count VII). The trial court sentenced
him to concurrent terms of 30 years in prison for counts I through VI and
15 years for count VII.

   In 2002, appellant moved to correct his sentence based upon Heggs v.
State, 759 So. 2d 620 (Fla. 2000). The state conceded there was a Heggs
violation. With a corrected scoresheet, appellant’s maximum permissible
sentence was 21.42 years in prison. The trial court resentenced appellant
on counts II-VI to 20 years in prison. He was not resentenced on count I
and is still serving 30 years for that offense. It is unclear from the record
on appeal in this case why appellant was not resentenced on count I.

   In April 2017, appellant filed the instant rule 3.800(a) motion seeking
resentencing pursuant to Graham, Henry v. State, 175 So. 3d 675 (Fla.
2015), and Kelsey v. State, 206 So. 3d 5 (Fla. 2016). Appellant argued that
the trial court must reconsider his sentence in light of the factors
enumerated in section 921.1401(2), Florida Statutes (enacted as part of
chapter 2014-220).

   The trial court set the case for resentencing. Prior to the hearing,
defense counsel filed memoranda of law explaining that appellant was
entitled to resentencing under the 1994 guidelines. Counsel argued that
the most appellant could receive was 21.42 years in prison and the court
could not impose an upward departure without violating Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296
(2004). At the time, appellant had served over 20 years in prison.

   The trial court requested additional briefing as to whether resentencing
was required, and the parties filed additional memoranda. Discussing the
Florida Supreme Court’s decisions in Kelsey, Henry, and Johnson v. State,
215 So. 3d 1237 (Fla. 2017), the defense argued that any term-of-year
sentences for juvenile offenders without review provisions are illegal. The
state asserted that appellant’s sentence did not constitute a Graham
violation and chapter 2014-220 comes into play only if resentencing is
required.

    The trial court denied appellant’s motion based in part upon this court’s
decision in Davis v. State, 199 So. 3d 546 (Fla. 4th DCA 2016), which
involved a 75-year sentence challenged in a motion for postconviction
relief. In its ruling, the trial court stressed that Kelsey and Johnson were
cases where the original life without parole sentence for non-homicide
offenses clearly violated Graham. The court concluded:

         While the Court does not believe that the Supreme Court
      has yet to mandate resentencing of all juveniles sentenced to
      a term of years without a review mechanism, this issue is ripe
      for appellate guidance.      Certainly there is considerable
      confusion surrounding the status of juvenile offenders whose
      original sentences did not violate Graham.


                                     2
   While this appeal was pending, the Florida Supreme Court quashed
this court’s decision in Davis and remanded for resentencing in light of the
decision in Johnson. Davis v. State, SC16-1905, 2018 WL 480516 (Fla.
Jan. 19, 2018).

   In Graham, the United States Supreme Court held that the Eighth
Amendment prohibits a non-homicide juvenile offender from receiving a
sentence of life without parole unless there is “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” 560 U.S. at 75. In response to Graham, the Florida
Legislature enacted chapter 2014-220, Laws of Florida, which has been
codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes.
Chapter 2014-220 requires that juvenile offenders who commit offenses
after July 1, 2014 receive a review hearing and an opportunity for early
release after serving 15, 20, or 25 years depending on the crime committed
and the length of the prison sentence.

    Subsequently, the Florida Supreme Court decided Henry, Kelsey,
Johnson, and Lee v. State, 234 So. 3d 562 (Fla. 2018). In Henry, a juvenile
non-homicide offender who was sentenced to life plus 60 years was
resentenced following Graham to an aggregate of 90 years. 175 So. 3d at
676.    Citing Graham, the supreme court found the new sentence
unconstitutional and remanded for resentencing under chapter 2014-220.
Id. at 679-80.

   In Kelsey, a juvenile non-homicide offender who was sentenced to life
plus 25 years was resentenced to 45 years after Graham but before the
Florida Legislature passed chapter 2014-220. 206 So. 3d at 6-7. The
supreme court clarified that a term-of-years sentence does not have to
amount to a de facto life sentence to violate Graham. Id. at 10. The court
further stated that “juveniles who are serving lengthy sentences are
entitled to periodic judicial review to determine whether they can
demonstrate maturation and rehabilitation.” Id. The court concluded that
the 45-year resentence did not provide a meaningful opportunity for relief
within his lifetime and remanded for resentencing under chapter 2014-
220. Id. at 11.

   In Johnson, a juvenile non-homicide offender who was sentenced to life
was resentenced following Graham to 100 years. 215 So. 3d at 1239. The
supreme court stated that “we have determined that Graham prohibits
juvenile nonhomicide offenders from serving lengthy terms of incarceration
without any form of judicial review mechanism.” Id. at 1240. Because the
sentence violated Graham, the court remanded for resentencing under
chapter 2014-220. Id. at 1243-44.

                                     3
   In Lee, a juvenile non-homicide offender who was sentenced to life was
resentenced to 40 years after the decision in Graham but before the Florida
Legislature passed chapter 2014-220. 234 So. 3d at 563-64. The supreme
court reversed and remanded for resentencing under chapter 2014-220,
finding the sentence did not “provide him an opportunity to obtain early
release based on a demonstration of maturity and rehabilitation before the
expiration of the imposed term.” Id. at 564. 1

   We distinguish Henry, Kelsey, Johnson, and Lee, as those cases all
involve juvenile non-homicide offenders who were resentenced following
Graham and whose sentences imposed on resentencing still were
unconstitutional. In those cases, the violation of the dictates of Graham
resulted in resentencing, which was mandated by the Florida Supreme
Court to be in accordance with chapter 2014-220. In contrast, the instant
case involves an original sentence, and there is no clear authority stating
that a 30-year sentence violates Graham so as to trigger resentencing
under chapter 2014-220. The dissent overlooks this distinction and, in
doing so, conflates Graham and chapter 2014-220.

   Certainly considerable confusion remains as to when a juvenile non-
homicide offender sentence becomes illegal under Graham so as to
mandate resentencing. In other words, it is unclear whether the triggering
factor is a per se “lengthy” sentence, a sentence that exceeds the statutory
threshold of chapter 2014-220, or just any “term-of-years” sentence.
Despite this confusion, what is clear is that the Florida Supreme Court
has not plainly required that all “term-of-years” juvenile offender
sentences—even those of shorter duration—provide a mechanism for early
release based on demonstrated maturity and rehabilitation. Nor has the
supreme court expressly stated that any juvenile offender sentence
exceeding the thresholds for review in chapter 2014-220 is
unconstitutional or otherwise illegal.

   The Florida Supreme Court has not yet applied Graham to a 30-year or
shorter sentence. In Abrakata v. State, 168 So. 3d 251 (Fla. 1st DCA
2015), a juvenile offender who received a 25-year sentence for non-
homicide offenses argued that his sentence violated Graham and that he
was entitled to review under section 921.1402(2)(c). The First District
concluded that the sentence did not violate Graham and without a Graham
violation, section 921.1402 did not apply retroactively. Id. at 252. The

1  Similarly, this court has remanded cases where defendants received
resentencing mandated by Graham, but did not receive sentence review under
chapter 2014-220. See Andrevil v. State, 226 So. 3d 867 (Fla. 4th DCA 2017);
Burger v. State, 232 So. 3d 1 (Fla. 4th DCA 2017).

                                     4
supreme court declined review. See SC15-1325, 2017 WL 24657 (Fla. Jan.
3, 2017) (Pariente, J., dissenting). See also Hill v. State, 172 So. 3d 491
(Fla. 1st DCA 2015), rev. denied, SC15-1667, 2017 WL 24659 (Fla. Jan. 3,
2017) (Pariente, J., dissenting) (involving a 35-year sentence for non-
homicide offenses); McCullum v. State, 173 So. 3d 1056 (Fla. 1st DCA
2015), rev. denied, SC15-1770, 2017 WL 24756 (Fla. Jan. 3, 2017)
(Pariente, J., dissenting) (involving an aggregate 55-year sentence for non-
homicide offenses); Williams v. State, SC16-2170, 2018 WL 1870518 (Fla.
Apr. 19, 2018) (involving a plurality opinion which, based entirely on the
state’s concession, ended inquiry and remanded for resentencing of a 35-
year sentence pursuant to chapter 2014-220).

   Further, no decision from the Supreme Court of the United States has
expanded Graham so broadly that it would encompass a 30-year sentence.
See, e.g., Virginia v. LeBlanc, 137 S. Ct. 1726, 1729 (2017) (holding that it
was not objectively unreasonable for a Virginia state court to conclude that
Virginia’s geriatric release program, which employed normal parole factors
and allowed for conditional release after a defendant reaches age 60 or 65,
“satisfied Graham’s requirement that juveniles convicted of a nonhomicide
crime have a meaningful opportunity to receive parole”).

   Our court has also previously declined to find that a 31-year sentence
imposed for crimes committed prior to the enactment of chapter 2014-220
requires resentencing. See Tillman v. State, 42 Fla. L. Weekly D1844 (Fla.
4th DCA Aug. 23, 2017); see also Davis v. State, 214 So. 3d 799 (Fla. 1st
DCA 2017) (concluding that a juvenile offender’s 35-year sentence for
homicide and non-homicide offenses did not violate Graham or Miller v.
Alabama, 567 U.S. 460 (2012), so resentencing was not required).

    There is simply no authority—either constitutional, statutory, or
precedential—stating that any “term-of-years” juvenile offender sentence
that does not provide an opportunity for early release, or any sentence
exceeding the statutory thresholds in chapter 2014-220, is
unconstitutional under Graham and requires resentencing even if the
offense was committed prior to chapter 2014-220’s effective date. In the
absence of a Graham violation, there is no clear authority to resentence.
To hold otherwise would effectively require resentencing in every “term-of-
years” case or every case where the sentence exceeds the statutory
thresholds, no matter when the crime was committed.

   In order for a mandated resentencing under chapter 2014-220 to come
into play, there must first be a Graham violation. Without a clear violation
of Graham, there is no requirement for a resentencing under chapter 2014-
220.

                                     5
   Significantly, the prohibition against cruel and unusual punishment in
the Florida Constitution must be construed in conformity with decisions
of the Supreme Court of the United States interpreting the Eighth
Amendment. Art. I, § 17, Fla. Const.; Correll v. State, 184 So. 3d 478, 489
(Fla. 2015) (“[T]his Court is bound by the conformity clause of the Florida
Constitution to construe the state prohibition against cruel and unusual
punishment consistently with pronouncements by the United States
Supreme Court.”). Thus, we decline to expand the holding of Graham.

   Appellant did not receive a life without parole sentence and, even if he
serves his 30-year sentence day-for-day, he will be released when he is in
his forties. Given these circumstances, we cannot conclude that the 30-
year sentence violates the Eighth Amendment or Graham, especially in the
absence of any authority to the contrary.

    We affirm the trial court’s order and certify conflict with the following
decisions: Cuevas v. State, 43 Fla. L. Weekly D563 (Fla. Mar. 9, 2018)
(reversing the denial of a rule 3.800(a) motion and concluding that a
juvenile non-homicide offender’s sentences of 26 years in prison were
unconstitutional under Graham as construed in Henry and Johnson);
Blount v. State, 43 Fla. L. Weekly D476 (Fla. 2d DCA Feb. 28, 2018)
(reversing the denial of a rule 3.800(a) motion to correct juvenile non-
homicide sentences of 40 years in prison and remanding for resentencing
pursuant to Johnson); Mosier v. State, 235 So. 3d 957 (Fla. 2d DCA 2017)
(reversing the denial of a rule 3.800(a) motion and concluding that a
juvenile non-homicide offender’s sentences of 30 years in prison followed
by 10 years of sexual offender probation were unconstitutional under
Graham as construed in Henry and Johnson); Alfaro v. State, 233 So. 3d
515, 516 (Fla. 2d DCA 2017) (reversing 30-year sentences for non-
homicide offenses and rejecting trial court’s conclusion that “Kelsey only
applied to juvenile offenders like Kelsey who initially received life sentences
but had been resentenced to a term of years under Graham”); Burrows v.
State, 219 So. 3d 910, 911 (Fla. 5th DCA 2017) (reversing denial of
postconviction relief and remanding for resentencing where juvenile
offender received 25-year sentences for non-homicide offenses).

  Our affirmance is without prejudice to appellant filing a rule 3.800(a)
motion to correct an illegal sentence if the sentence on count I violates
Heggs and the failure to correct the sentence was an oversight or error.

   Affirmed. Conflict certified.



                                      6
GERBER, C.J., DAMOORGIAN, CIKLIN, CONNER, FORST, KLINGENSMITH and
KUNTZ, JJ., concur.

WARNER, J., dissenting.

    As the Florida Supreme Court has already addressed the issue
presented in the majority opinion, I dissent. I would reverse and remand
for resentencing of Hart consistent with Lee v. State, 234 So. 3d 562 (Fla.
2018); Johnson v. State, 215 So. 3d 1237 (Fla. 2017); and Kelsey v. State,
206 So. 3d 5 (Fla. 2016).

   The issue presented is whether a juvenile sentenced, for a non-
homicide offense, to prison for thirty years prior to Henry v. State, 175 So.
3d 675 (Fla. 2015), must be resentenced. In Kelsey, the court considered
the following question:

      Is a defendant whose original sentence violated Graham v.
      Florida, 560 U.S. 48 [130 S. Ct. 2011, 176 L. Ed. 2d 825]
      (2010), and who was subsequently resentenced prior to July
      1, 2014, entitled to be resentenced pursuant to the provisions
      of chapter 2014–220, Laws of Florida?

Kelsey, 206 So. 3d at 6 (alterations in original). The court answered this
question in the affirmative. It did not limit its answer to sentences in
excess of thirty years. After reviewing the prior case law, the court
concluded that Chapter 2014-220, requiring periodic judicial review,
should be applied to all juveniles serving lengthy sentences who were
sentenced prior to Henry:

      In other words, we have determined through our reading of
      the Legislature’s intent in passing chapter 2014–220, Laws of
      Florida, that juveniles who are serving lengthy sentences are
      entitled to periodic judicial review to determine whether they
      can demonstrate maturation and rehabilitation. It would be
      antithetical to the precept of Graham and chapter 2014–220,
      Laws of Florida, to interpret them so narrowly as to exclude a
      juvenile offender who happens to have been resentenced
      before this Court issued Henry.

Kelsey, 206 So. 3d at 10.

   A lengthy sentence thus violates the precepts of Graham when it does
not provide a means of early release based on maturity. The legislature


                                     7
settled upon specific judicial review of sentences as satisfying the means
for release. The court concluded:

      In Henry, we determined that the Legislature’s remedy was
      the appropriate remedy in these cases, and the Legislature
      has determined that the “means and mechanisms for
      compliance” with Graham are to provide judicial review
      for juvenile offenders who are sentenced to terms longer
      than twenty years.       Therefore Kelsey is entitled to
      resentencing under those provisions.

Id. at 11 (emphasis added). Thus, the court determined to follow the
provisions of chapter 2014-220, Laws of Florida, for those pre-Henry
sentences imposed on juveniles which exceed twenty years.

   The court expanded that reasoning in Johnson v. State, 215 So. 3d
1237, 1243 (Fla. 2017), and held that three factors must be considered in
reviewing a juvenile’s term of years sentence post-Henry.

      In other words, pursuant to Henry, we must consider three
      factors when reviewing a juvenile nonhomicide offender’s
      term-of-years sentence. Post–Henry, we must ensure that a
      juvenile nonhomicide offender does not receive a sentence
      that provides for release only at the end of a sentence (e.g. a
      45-year sentence with no provision for obtaining early release
      based on a demonstration of maturity and rehabilitation
      before the expiration of the imposed term, such as in Kelsey).
      Secondly, we must ensure that a juvenile nonhomicide
      offender who is sentenced post-Henry does not receive a
      sentence which includes early release that is not based on a
      demonstration of rehabilitation and maturity (i.e. gain time or
      other programs designed to relieve prison overpopulation).
      Last, we must ensure that a juvenile nonhomicide offender
      who is sentenced post-Henry does not receive a sentence that
      provides for early release at a time beyond his or her natural
      life (e.g. a 1,000-year sentence that provides parole-eligibility
      after the offender serves 100 years).        To qualify as a
      “meaningful opportunity for early release,” a juvenile
      nonhomicide offender’s sentence must meet each of the three
      parameters described in Henry.

Significantly, the court noted that the State in its answer brief in Johnson
conceded that the length of sentence was not controlling. “The State
argues that it is not the length of the sentence given, but rather whether

                                     8
the juvenile offender will have some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” Id. The court
reiterated that the length of sentence was not the controlling factor:

      Further, we previously acknowledged that the length of the
      sentence alone was not dispositive in Kelsey when we said
      that Kelsey's “sentence was unconstitutional not because of
      the length of his sentence, but because it did not provide him
      a meaningful opportunity for early release based on
      maturation and rehabilitation” during his natural life. Kelsey,
      206 So.3d at 11.

Id. Most recently, the court again addressed the issue in Lee v. State. Lee
was serving a forty-year sentence for a nonhomicide crime. 234 So. 3d at
563. The court recited the three factors listed in Johnson to consider
whether the defendant required resentencing and held that “Lee’s sentence
does not provide him an opportunity to obtain early release based on a
demonstration of maturity and rehabilitation before the expiration of the
imposed term. Accordingly, Lee is entitled to resentencing under the
juvenile sentencing provisions in chapter 2014–220.” Id. at 564. In other
words, it is the opportunity for early release based on a demonstration of
maturity which is required.

   We have already applied the analysis of Kelsey and Johnson to a
juvenile who received a thirty-five-year sentence in Andrevil v. State, 226
So. 3d 867, 871 (Fla. 4th DCA 2017), concluding it was not the length of
sentence alone but the requirement that a juvenile have the opportunity
for early release based upon maturation, and thus early judicial review,
which is necessary:

      Based on Johnson II and the rationale underlying Henry and
      Kelsey, we conclude that appellant must be afforded periodic
      review under chapter 2014–220, Laws of Florida. Johnson II
      stated that its holding in Henry “was not predicated on the
      term of the sentence, but on the status of, and the opportunity
      afforded, the offender.” 215 So. 3d at 1240. Johnson II noted
      that the length of the sentence alone is not dispositive because
      “any term of imprisonment for a juvenile is qualitatively
      different than a comparable period of incarceration is for an
      adult.” Id. at 1239–40 (citing Henry, 175 So. 3d at 680).

Id. As noted in the majority opinion, other courts have held that sentences
in excess of twenty years require resentencing pursuant to Kelsey and
Johnson.

                                     9
    The majority also mentions several juvenile cases in which the supreme
court has declined to exercise discretionary jurisdiction where the juvenile
was not resentenced and had a sentence of thirty years or greater.
Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015), rev. denied,
No. SC15-1325, 2017 WL 24657 (Fla. Jan. 3, 2017) (Pariente, J.,
dissenting) (involving twenty-five year sentence for non-homicide offenses);
Hill v. State, 172 So. 3d 491 (Fla. 1st DCA 2015), rev. denied, No. SC15-
1667, 2017 WL 24659 (Fla. Jan. 3, 2017) (Pariente, J., dissenting)
(involving thirty-five-year sentence for non-homicide offenses); McCullum
v. State, 173 So. 3d 1056 (Fla. 1st DCA 2015), rev. denied, No. SC15-1770
2017 WL 24756 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving
aggregate fifty-year sentence for non-homicide offenses). I cannot explain
why the supreme court would not exercise jurisdiction in those cases,
although the underlying decisions were all rendered prior to the decisions
in Kelsey and Johnson. If the court is actually determining that juvenile
sentences less than forty or forty-five years do not require resentencing,
then the court should revisit its ruling in Kelsey.

    For these reasons, I would follow Kelsey, Johnson, and Lee and reverse
for resentencing consistent with these cases.

GROSS, TAYLOR and MAY, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                    10
