         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-5621
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DONTAVIOUS LAMAR COPELAND,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

                        February 9, 2018


OSTERHAUS, J.

     Dontavious Lamar Copeland appeals the life sentence
imposed for first-degree murder after the Florida Supreme Court
reversed and remanded his case for resentencing under Horsley v.
State, 160 So. 3d 393 (Fla. 2015). The State also cross-appeals,
arguing that the sentence unlawfully provided for judicial review
after 25 years. We reverse and remand for resentencing because
the sentence is unlawful.

                                I.

     Mr. Copeland was seventeen years old when he killed
Jearicka Mack, a fifteen-year-old bystander at the scene of a
parking lot fight outside a club. See Copeland v. State, 129 So. 3d
508, 509 (Fla. 1st DCA 2014). Following a guilty verdict on a first
degree murder charge, the trial court sentenced Mr. Copeland to
life in prison without the possibility of parole. Id. at 510. This court
affirmed. Id. at 511. However, in the wake of a new juvenile
sentencing law being enacted, the Florida Supreme Court quashed
our decision and remanded for “resentencing in conformance with
the framework established in chapter 2014-220, Laws of Florida,
which has been codified in sections 775.082, 921.1401, and
921.1402 of the Florida Statutes.” Copeland v. State, 177 So. 3d
1264 (Fla. 2015).

     At the re-sentencing hearing, the State and Mr. Copeland
presented evidence to the trial court and arguments on the factors
set forth in § 921.1401(2). After weighing the factors, the court
determined that Mr. Copeland’s crime and situation were
consistent with the uncommon circumstance where life
imprisonment constitutes an appropriate sentence. It sentenced
him to life in prison. Over the State’s objection, the trial court
additionally imposed judicial review of Mr. Copeland’s sentence
after 25 years. See § 921.1402(2)(a), Fla. Stat.

     After sentencing, Mr. Copeland filed two motions to correct
sentencing errors. The first motion argued that a jury verdict was
needed on the sentencing factors in order to authorize his sentence
under § 921.1401. The trial court denied this motion. The second
motion involved the sentence’s provision for a judicial review
hearing after 25 years. Mr. Copeland argued that the trial court
made a scrivener’s error by stating that Mr. Copeland was
“entitled to” a review hearing, instead of saying that he was
“eligible for” a review hearing. At a subsequent hearing, the State
argued that Mr. Copeland was neither “entitled to,” nor “eligible
for” a 25-year review hearing, and that it had already cross-
appealed the issue. The trial court denied the motion.

     As it now stands, Mr. Copeland appeals the life sentence and
the State cross-appeals the trial court’s decision to grant a 25-year
review hearing to Mr. Copeland.




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                                 II.

                                 A.

     Mr. Copeland argues that that his rights to a jury trial were
violated at resentencing because the trial court considered the
§ 921.1401(2) sentencing factors, instead of a jury. Although the
terms of this law provide that “the court shall consider factors
relevant to the offense and the defendant’s youth and attendant
circumstances,” Mr. Copeland argues that the Sixth Amendment
to the United States Constitution, as interpreted in Apprendi v.
New Jersey, 530 U.S. 466 (2000) and Hurst v. State, 202 So. 3d 40
(Fla. 2016), and article I, section 22 of the Florida Constitution,
require a jury to consider these sentencing factors before a life-
sentence is imposed. We disagree with his argument for the
reasons set forth in Beckman v. State, 230 So. 3d 77, 94-97 (Fla. 3d
DCA 2017). See also Horsley, 160 So. 3d at 409 (“We conclude that
applying chapter 2014-220, Laws of Florida to offenders like
Horsley is the only way to comply with the commandment of the
United States Supreme Court and to effectuate the intent of our
Legislature.”); Miller v. Alabama, 567 U.S. 460, 489 (2012) (noting
that “Graham, Roper, and our individualized sentencing decisions
make clear that a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest
possible penalty for juveniles”) (emphasis added).

                                 B.

     We agree with the parties, however, regarding error
associated with the trial court’s imposition of a 25-year judicial
review. Section 921.1402(2)(a) entitles a juvenile convicted of first-
degree murder to a review of his or her sentence after 25 years,
unless “he or she has previously been convicted of [certain
separate] offenses,” which includes armed robbery. Here, the court
recognized that Mr. Copeland was convicted of an earlier armed
robbery. For this reason, Mr. Copeland was “not entitled to” or
“eligible for” a review of his sentence after 25 years. §
921.1402(2)(a), Fla. Stat.; Fla. R. Crim. P. 3.781(c)(2) (providing
that a defendant convicted of a § 775.082(1)(b)1. offense “shall not
be eligible for” a sentence review hearing if previously convicted of
an offense found in § 921.1402(2)(a)). Because the sentence
imposed by the trial court unlawfully included a 25-year sentence
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review, we must reverse and remand for resentencing. This result
additionally resolves Mr. Copeland’s contention that the trial court
impermissibly factored in a 25-year sentence review in deciding to
impose a life sentence. Upon remand, the trial court will have the
opportunity to resentence Mr. Copeland without including judicial
review of his sentence 25 years from now.

     Finally, we reject Mr. Copeland’s argument that
§ 921.1402(2)(a)’s prohibition on 25-year sentence reviews for
juveniles with certain prior-felony convictions is unconstitutional.
Without reaching the merits of his Equal Protection and Eighth
Amendment arguments, we recognize that the Florida Supreme
Court issued explicit instructions to the trial court that it
resentence Mr. Copeland “in conformance with the framework
established in chapter 2014-220, Laws of Florida, which has been
codified in sections 775.082, 921.1401, and 921.1402 of the Florida
Statutes.” Copeland, 177 So. 3d at 1264. These remand
instructions necessarily include applying § 921.1402(2)(a)’s
express prohibition on 25-year reviews for prior offenders. If Mr.
Copeland had a constitutional problem with being resentenced
under this framework with its sentence-review prohibition, he
should have argued that point to the Florida Supreme Court before
it remanded his case. Now, on remand, it is hardly this court’s or
the trial court’s place to depart from the sentencing framework
explicitly ordered by the Florida Supreme Court, or to declare its
remand order unconstitutional. See Blackhawk Heating &
Plumbing Co. Inc., v. Data Lease Fin. Corp., 328 So. 2d 825, 827
(Fla. 1975) (noting that trial courts lack authority to deviate from
an appellate court’s mandate); Ketcher v. Ketcher, 198 So. 3d 1061,
1063 (Fla. 1st DCA 2016) (“Where, as here, the final judgment is
reversed and remanded with specific instructions, the lower court
has authority to conduct further proceedings . . . but the court
cannot exceed the specific bounds of that instruction.”).

                                III.

    For the foregoing reasons, we vacate Mr. Copeland’s sentence
and remand for resentencing.




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    REVERSED and REMANDED.

LEWIS and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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