         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED



KENNETH PURDY,

              Appellant,

 v.                                                      Case No. 5D16-370

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed January 27, 2017

Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Matthew R. McLain, McLain Law, P.A.,
Maitland, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

       The primary issue that we address in this appeal is whether the trial court erred

when, during a juvenile offender’s sentence review hearing held pursuant to section

921.1402, Florida Statutes (2015), it failed to consider Appellant’s aggregate prison

sentence and instead just modified one individual sentence. To adequately answer this

question, we first provide a brief history of the proceedings below.
      In 1997, following a jury trial, Appellant was convicted of felony first-degree murder,

armed robbery, and armed carjacking. Appellant was a juvenile at the time that he

committed these crimes. The trial court sentenced Appellant to serve life in prison without

the possibility of parole for the murder conviction and two separate 112.7-month prison

sentences for the armed robbery and armed carjacking convictions. The court ordered

the 112.7-month prison sentences to run concurrently with each other but consecutively

to the life sentence.1 We affirmed Appellant’s convictions and sentences on direct appeal

without opinion. Purdy v. State, 725 So. 2d 1137 (Fla. 5th DCA 1998).

      Over the ensuing years, Appellant filed several motions seeking postconviction

relief. These motions were denied by the lower court, and the denial orders were affirmed

on appeal by this court.2 Nevertheless, on May 21, 2015, Appellant filed a successive

motion for postconviction relief based upon the United States Supreme Court’s opinion in

Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), where the Court held that a sentencing

scheme that mandates a life sentence without the possibility of parole for a juvenile

offender who commits a homicide violates the Eighth Amendment of the United States

Constitution. Appellant argued that although his life sentence was final long before Miller

was released, he is now entitled to relief from this sentence because the Florida Supreme

Court recently held that Miller was to be applied retroactively. See Falcon v. State, 162




      1Each sentence also included a three-year minimum mandatory provision based
upon the jury making a specific finding on each count that Appellant was in actual
possession of a firearm when he committed these crimes.
      2 Purdy v. State, 158 So. 3d 605 (Fla. 5th DCA 2015); Purdy v. State, 43 So. 3d
708 (Fla. 5th DCA 2010); Purdy v. State, 907 So. 2d 545 (Fla. 5th DCA 2005); Purdy v.
State, 773 So. 2d 560 (Fla. 5th DCA 2000).


                                             2
So. 3d 954, 962–63 (Fla. 2015). The postconviction court agreed, summarily granted the

motion, and set the matter for resentencing.3

       On November 18, 2015, the court held the resentencing hearing. At this hearing,

Appellant’s counsel requested that a “credit time served” sentence be imposed,

suggesting to the court that it could craft a “sentencing scheme” that would allow Appellant

to be immediately released. The State countered that Appellant should be resentenced

to serve fifty years in prison for the murder conviction. Pertinent to this appeal, the State

also advised the court that it would need to address at this hearing or at the subsequent

review hearing whether Appellant was also entitled to be resentenced on his previously

imposed consecutive sentences for the armed robbery and armed carjacking.

       The court, after considering the factors set forth in section 921.1401(2)(a)–(j),

Florida Statutes (2015), resentenced Appellant to serve forty years in prison for the

murder conviction, with appropriate jail credit and prison credit awarded, but did not

separately provide for a sentence review hearing in this new sentence. The court declined

to hold the review hearing that day, advising Appellant that he would first need to file the

necessary paperwork requesting the review hearing and, that at this later hearing, the

court would determine whether “[Appellant] can be released.”4 Additionally, the court did

not modify Appellant’s sentences for the armed robbery or armed carjacking convictions,

concluding that it did not have the discretion or authority to do so. As a result, Appellant’s


       3 In Horsley v. State, 160 So. 3d 393, 395–96 (Fla. 2015), the court held that a
juvenile offender whose earlier sentence was found to be unconstitutional should be
resentenced in light of the juvenile sentencing legislation enacted by the Legislature in
2014, now codified in sections 775.082, 921.1401–.1402, Florida Statutes (2015).
       4Based on the court’s factual findings at the resentencing hearing, Appellant,
having already served more than twenty years of his prison sentence, was entitled to a
review hearing. See §§ 775.082(1)(b)2.; 921.1402 (2)(c), Fla. Stat. (2015).


                                              3
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED



KENNETH PURDY,

              Appellant,

 v.                                                      Case No. 5D16-370

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed January 27, 2017

Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Matthew R. McLain, McLain Law, P.A.,
Maitland, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

       The primary issue that we address in this appeal is whether the trial court erred

when, during a juvenile offender’s sentence review hearing held pursuant to section

921.1402, Florida Statutes (2015), it failed to consider Appellant’s aggregate prison

sentence and instead just modified one individual sentence. To adequately answer this

question, we first provide a brief history of the proceedings below.
       The court first calculated that, at the time of the review hearing, Appellant had been

in custody on this case for a total of twenty years, six months, and thirteen days. It then

modified Appellant’s sentence on the murder conviction to this amount of time served, to

be followed by ten years of probation. However, the court again concluded that it lacked

jurisdiction to consider modifying the 112.7-month prison sentences for the armed robbery

and armed carjacking convictions.5

       In Tyson v. State, 199 So. 3d 1087 (Fla. 5th DCA 2016), we recently held that a

juvenile offender who was sentenced to serve thirty years in prison on one count, to be

followed by fifteen years in prison on a second count, received an unconstitutional

sentence because the aggregate sentence did not provide for a review hearing after the

juvenile offender served twenty years in prison. 199 So. 3d at 1087–89. Additionally, in

Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), a juvenile homicide offender initially

received a life sentence for first-degree murder and was resentenced, following Miller, to

a term of forty years in prison for the murder and a concurrent thirty years in prison for an

armed robbery conviction with no provision for a sentence review hearing. 135 So. 3d at

590–91. The First District affirmed the concurrent sentences, id., but the Florida Supreme

Court, in a brief, unanimous opinion, quashed the decision of the First District and

remanded the case for resentencing in conformance with the framework established in


       5 Prior to filing this appeal, Appellant filed a motion pursuant to Florida Rule of
Criminal Procedure 3.800(b)(1) to correct illegal sentence, arguing, among other things,
that as a result of finding him to be rehabilitated and reasonably believing that he is fit to
reenter society, the trial court was required under section 921.1402, Florida Statutes
(2015), to immediately release him from prison on at least five years of probation. While
the motion could have been more precisely stated, Appellant argued that the present
aggregate sentence he is now serving, which requires him to remain in prison to serve
his sentences for robbery and carjacking despite being found rehabilitated and fit to
reenter society, is illegal. The trial court denied the motion.



                                              5
the 2014 juvenile sentencing laws now codified in sections 775.082, 921.1401, and

921.1402 of the Florida Statutes. Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

       More recently, in Kelsey v. State, 41 Fla. L. Weekly S600 (Fla. Dec. 8, 2016), the

Florida Supreme Court reiterated that the constitutionality of a juvenile offender’s

sentence is not based on the length of the sentence, but rather, it is dependent upon

whether the sentence provided the offender with a meaningful opportunity for early

release based on maturation and rehabilitation.       41 Fla. L. Weekly at S602.       The

defendant in Kelsey, a juvenile nonhomicide offender, had initially received two life

sentences, but following the United States Supreme Court’s opinion in Graham v. Florida,

560 U.S. 48 (2010),6 the defendant was resentenced to concurrent forty-five-year prison

sentences, but without a sentence review hearing. Id. at S600–01. The First District

affirmed the new sentences, concluding that the forty-five-year prison term did not

constitute a de facto life sentence in violation of Graham. Kelsey v. State, 183 So. 3d

439 (Fla. 1st DCA 2015). However, the supreme court remanded for resentencing,

concluding that, consistent with its decision in Henry v. State, 175 So. 3d 675 (Fla. 2015),

all juvenile offenders whose sentences met the standard defined by the Legislature in

chapter 2014-220, Laws of Florida, which includes any sentence longer than twenty

years, are entitled to judicial review, not simply those term-of-years sentences that are

“de facto life.” Kelsey, 41 Fla. L. Weekly at S600–03.

       Based on these cases, we conclude that when a juvenile offender is entitled to a

sentence review hearing, the trial court is required to review the aggregate sentence the



       6 In Graham, the United States Supreme Court held that the Eighth Amendment
forbids a sentence of life without parole for a juvenile offender who did not commit a
homicide. 560 U.S. at 74.


                                             6
juvenile offender is serving in determining whether to modify the offender’s sentence

based upon demonstrated maturity and rehabilitation. We therefore hold that the lower

court erred in failing to consider Appellant’s aggregate 49-year, 4.7-month prison

sentence at the review hearing and remand for the trial court to conduct a second review

hearing to address whether to modify this sentence. If the court determines at this hearing

that Appellant has been rehabilitated and is reasonably believed to be fit to reenter

society, the court shall modify the aggregate sentence. See § 921.1402(7), Fla. Stat.

(2015).

       Appellant has raised two other issues in this appeal. In his second issue, Appellant

argues that the court erred in finding that he was not eligible for gain time on the sentence

imposed for the first-degree murder at the review hearing. We note that “[t]he authority

to regulate gain time resides with the Department of Corrections.” Miller v. State, 882 So.

2d 480, 481 (Fla. 5th DCA 2004) (citing Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)).

“If, in sentencing, a court attempts to bar or grant gain time, such language has been

treated as surplusage or stricken.” Id. (citing Singletary v. Coronado, 673 So. 2d 924

(Fla. 2d DCA 1996); Shupe v. State, 516 So. 2d 73 (Fla. 5th DCA 1987)). We therefore

strike as surplusage any language from the recently entered sentencing documents

regarding gain time.7


       7 In Appellant’s aforementioned motion to correct illegal sentence, he also asserted
that the trial court lacked authority to comment on gain time and asked that such language
in the order be stricken. As to the merits of his claim, we note that subsequent to the
lower court’s resentencing, Appellant pursued his administrative remedies through the
Department of Corrections (“DOC”) regarding the denial of his claim for gain time on his
sentence. After the DOC denied relief, Appellant then filed a petition seeking habeas
corpus relief with the circuit court, challenging the DOC’s adverse determination as to his
request for gain time. The circuit court denied his petition. Appellant thereafter filed a
petition for writ of certiorari with our court regarding the denial of his habeas corpus
petition, which was denied by this court without elaboration in case number 5D16-897.


                                             7
      In his third issue, Appellant asserts that the three-year minimum mandatory

provisions of his sentences for armed robbery and armed carjacking should not run

consecutively. Based on the facts of this case and as correctly conceded by the State,

the three-year minimum mandatory sentence provisions of Appellant’s convictions for

armed robbery and armed carjacking must run concurrently and not consecutively to each

other. Because there was conflicting language in separate, contemporaneously rendered

sentencing documents on this issue when Appellant was first sentenced, the trial court is

directed to clarify and correct the judgment and sentences on remand.

      REMANDED, with directions.

ORFINGER, J., concurs.
BERGER, J., concurs in part, and dissents in part, with opinion.




                                           8
BERGER, J., concurring, in part, and dissenting.                                  5D16-370

         I agree with the majority that the authority to regulate gain time resides with the

Department of Corrections.        I also agree that the three-year minimum mandatory

sentences imposed on counts two and three for armed robbery and armed carjacking,

must run concurrently with each other. However, I disagree with the majority view that,

pursuant to section 921.1402, Florida Statutes (2015), Appellant is entitled to a sentence

review on counts two and three.

         When Appellant was resentenced pursuant to section 921.1401, Florida Statutes

(2015), to serve forty years in prison on his conviction for first-degree felony murder, his

sentence was no longer unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012).

Nevertheless, he was entitled to, and did, receive a sentence review hearing on this

charge pursuant to section 921.1402(2)(c). See § 775.082(1)(b)2., Fla. Stat. (2015).

         Notably, Appellant did not seek resentencing on counts two and three in his motion

for postconviction relief under Florida Rule of Criminal Procedure 3.850 and Miller. At the

hearing on the postconviction motion, Appellant raised the issue of determining the

applicable sentencing guidelines as to counts two and three, which the trial court declined

to address, but Appellant did not raise any issues concerning his aggregate sentence. At

the conclusion of the hearing, Appellant requested clarification on the trial court's ruling,

but he did not object or argue to the contrary when the trial court stated that it did not

believe it had discretion to modify or change Appellant's sentence on counts two and

three.    Moreover, when the sentences imposed in counts two and three were left

undisturbed on resentencing, Appellant did not appeal the trial court’s decision to leave

those sentences intact. Subsequently, during the judicial review hearing under section

921.1402(2)(c), Appellant did not object when the trial court indicated it did not have


                                              9
jurisdiction to resentence him on those counts. During the judicial review hearing, and in

his motion to correct his sentence under Florida Rule of Criminal Procedure 3.800(b),

Appellant did no more than argue that he was entitled to immediate release based on his

rehabilitation and fitness to reenter society and seek to reduce the first-degree felony

murder sentence to ten years so that the sentences for counts two and three, running

consecutive to the first-degree felony murder sentence, had already been completed.

Appellant made no arguments concerning the aggregate length of his sentences. In fact,

it was the State, not Appellant, who raised the issue of the trial court's lack of jurisdiction

to review the sentences in counts two and three under section 921.1402(1). As such, the

sentences in counts two and three are not subject to review. See Fla. R. App. P. 9.140(e);

Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008); Bertolotti v. Dugger, 514 So. 2d 1095,

1096 (Fla. 1987) ("In order to preserve an issue for appellate review, the specific legal

argument or ground upon which it is based must be presented to the trial court." (citing

Tillman v. State, 471 So. 2d 32 (Fla. 1985))). Even if they were, a 112.7 month sentence

does not trigger a sentence review hearing under section 921.1402(2). See Barnes v.

State, 175 So. 3d 380, 382 n.1 (Fla. 5th DCA 2015) ("The statutory provisions governing

juvenile sentencing do not apply to the defendant’s five-year sentence for count twenty

and his one-year sentence for count twenty-one; thus, resentencing on these counts is

not necessary.").

       I recognize that leaving the sentences in counts two and three intact creates an

anomaly in light of the trial court’s conclusion that Appellant is rehabilitated and fit to

reenter society. Nevertheless, I believe the glitch is one that requires a legislative fix, not

a judicial one.     See Ortiz v. State, 188 So. 3d 113, 116 n.4 (Fla. 1st DCA 2016)

(recognizing the anomaly that the Appellant will receive a sentence review under section


                                              10
921.1402(2)(a) for his first-degree murder conviction but not for home invasion robbery

while armed with a firearm). Accordingly, I dissent.




                                           11
