                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

KENNETH WRIGHT,                         NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D16-2337

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed August 10, 2017.

An appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

Kenneth Wright, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant challenges the denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial

of grounds one through three of the appellant’s motion. However, we reverse and

remand the denial of ground four for the trial court to give the appellant an

opportunity to plead a facially sufficient claim.
      According to the appellant’s allegations, he was convicted of robbery in

1974, for a crime that he committed as a juvenile, and was sentenced to life in

prison. In ground four of his motion, the appellant alleged that his life sentence for

robbery violates the Supreme Court’s holding in Miller v. Alabama, 132 S. Ct.

2455 (2012), which forbids mandatory life without parole sentences for juvenile

offenders who commit homicide. However, Miller does not apply because the

appellant was not sentenced to a mandatory term of life in prison for a homicide

offense. The appellant is really challenging his sentence under Graham v. Florida,

560 U.S. 48 (2010), which held that the constitutional prohibition on cruel and

unusual punishments prevents a juvenile offender from being sentenced to life in

prison for a nonhomicide offense without having a meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.          Here, the

appellant has failed to allege that he has never been released on parole and that he

has no meaningful opportunity for release within his lifetime based upon

demonstrated maturity and rehabilitation. See Currie v. State, 42 Fla. L. Weekly

D1238a (Fla. 1st DCA May 31, 2017) (holding that a defendant sentenced to life in

prison for a sexual battery committed when he was a juvenile was not entitled to

relief pursuant to Graham where he was released on parole when he was 25 years

old and was then reincarcerated, and where the Commission on Offender Review

has assigned him a presumptive parole release date, as the defendant was afforded

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a meaningful opportunity to obtain release); Rooks v. State, 42 Fla. L. Weekly

D1573a (Fla. 3d DCA July 12, 2017) (holding that a defendant who was released

on parole and violated the parole is not entitled to resentencing under Florida’s

newly-enacted juvenile sentencing law). We reverse and remand for the lower

court to give the appellant an opportunity to allege that he has never been released

and has no meaningful opportunity to obtain release within his lifetime based on

demonstrated maturity, if he can do so in good faith.

      AFFIRMED in part, REVERSED in part, and REMANDED in part with

directions.

WOLF, RAY, and MAKAR, JJ, CONCUR.




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