       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 30, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1052
                         Lower Tribunal No. 05-5530C
                             ________________


                               Cordero Neely,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.

     Charles G. White, for appellant.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.

Before WELLS, FERNANDEZ and SCALES, JJ.

     FERNANDEZ, J.

     Cordero Neely appeals his life sentence without parole. We reverse Neely’s

non-homicide and first-degree murder sentences and remand for resentencing
because a life sentence for juvenile offenders is impermissible without a

meaningful opportunity for release as provided for in section 775.082(1)(b)(1),

Florida Statutes (2014), and section 921.1402, Florida Statutes (2015). We base

our decision on statutory interpretation and juvenile sentencing jurisprudence for

which we provide a brief overview.

      Our discussion begins with Miller v. Alabama, 132 S. Ct. 2455 (2012) and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Miller involved a juvenile

convicted of murder and sentenced to life without the possibility of parole where

the United States Supreme Court held that the Eighth Amendment prohibits a

“sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders.” Miller, 132 S. Ct. at 2469. Montgomery involved a juvenile

convicted of murder and sentenced to life without parole. Montgomery, 136 S. Ct.

at 725. In Montgomery, the United States Supreme Court reiterated Miller’s

determination “that sentencing a child to life without parole is excessive for all but

‘the rare juvenile offender whose crime reflects irreparable corruption’ … [which

renders] a life sentence without parole an unconstitutional penalty for ‘a class of

defendants because of their status’—that is, juvenile offenders whose crimes

reflect the transient immaturity of youth”). Id. at 734. It further declared that

Miller’s retroactive effect does not require states to re-litigate sentences in cases




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where juvenile offenders received a mandatory life without parole sentence. Id. at

736.

       The Florida Supreme Court held in Falcon v. State, 162 So. 3d 954 (Fla.

2015), that Miller applied retroactively, and the appropriate remedy for a Miller

violation was resentencing the juvenile offender pursuant to sections 775.082,

921.1401 and 921.1402, Florida Statutes. Id. at 956. Additionally, the Florida

Supreme Court held most recently in Landrum v. State, 192 So. 3d 459 (Fla. 2016),

where a juvenile was convicted of second degree murder and sentenced to life

without parole, that the life sentence without parole was unconstitutional based on

a pre-Miller sentencing scheme that did not require consideration of a youth’s

distinctive attributes. Id. at 469. The Florida Supreme Court held that the proper

remedy for a Miller violation is resentencing under the new statutory scheme. Id.

at 465. “Life imprisonment remains a possibility if the trial court conducts an

individualized sentencing proceeding, with mandatory subsequent judicial review

available for those juvenile offenders who ‘actually killed, intended to kill, or

attempted to kill,’ that are sentenced to a term of imprisonment of more than

twenty-five years. For those offenders in this category who ‘did not actually kill,

intend to kill, or attempt to kill,’ the subsequent judicial review is available for a

sentence of more than fifteen years.” Id. (emphasis in original)(citing to Horsley

v. State, 160 So. 3d 393, 404 (Fla. 2015)). See also Atwell v. State, 197 So. 3d



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1040, 1048-50 (Fla. 2016)(involving a juvenile who received a mandatory term of

life imprisonment for first-degree murder, with the possibility of parole after

twenty-five years, and also a conviction for armed robbery and a sentence of life

imprisonment without the possibility of parole for armed robbery; holding that the

sentences “effectively resemble[d] a mandatorily imposed life without parole

sentence,” which did not provide the juvenile with the “type of individualized

sentencing consideration Miller requires;” stating that “[a] presumptive parole

release date set decades beyond a natural lifespan is at odds with the Supreme

Court’s recent pronouncement in Montgomery” and “the parole system would

nevertheless still have to afford juvenile offenders individualized consideration and

an opportunity for release”).

      Accordingly, we reverse Neely’s non-homicide and first-degree murder

sentences and remand to the trial court for the appropriate resentencing under

sections 775.082(1)(b)(1) and 921.1402, and consistent with the cases cited herein.

      Reversed and remanded with directions.




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