        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         BLANCHARD ST. VAL,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-3340

                            [August 5, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lucy C. Brown, Judge; L.T. Case No. 50-2003-CF-006685-
AXXX-MB.

  Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   Appellant argues that the twenty-five-year minimum mandatory
sentence he received for attempted first-degree murder committed when
he was seventeen years old violates the Eighth Amendment of the United
States Constitution. Appellant argues that a logical and reasonable
extension of recent United States Supreme Court decisions warrants the
conclusion that a twenty-five-year minimum mandatory sentence
constitutes cruel and unusual punishment. We disagree and decline to
find that a twenty-five-year minimum mandatory sentence for a non-
homicide offense committed when appellant was seventeen violates the
Eighth Amendment. We affirm appellant’s sentence.

   After a jury trial, appellant was convicted of attempted first-degree
murder with a firearm, attempted second-degree murder, and two counts
of shooting into an occupied vehicle. The evidence at the trial was that
appellant, when he was seventeen years old, shot at two people in a car,
leaving one victim wounded in the arm and head. Initially, the trial court
sentenced appellant to life in prison. After the United States Supreme
Court decided Graham v. Florida, 560 U.S. 48 (2010), which held that a
life sentence without the possibility of parole for non-homicide offenses
committed while a juvenile was unconstitutional, appellant was
resentenced. At the resentencing hearing, appellant contended that a
minimum mandatory should not apply to juveniles because juveniles are
inherently less mature, more prone to impulsive and reckless behavior,
and morally less culpable than adults. The trial court sentenced appellant
to thirty-seven years in prison with a twenty-five-year minimum
mandatory. Appellant appeals the sentence.

  We review the constitutionality of a sentence under a de novo standard.
Abrams v. State, 971 So. 2d 1033, 1035 (Fla. 4th DCA 2008).

    Appellant relies on recent United States Supreme Court cases regarding
the constitutional boundaries that apply only to juveniles for the purpose
of sentencing. The construction of boundaries began with Roper v.
Simmons, 543 U.S. 551 (2005), where the Court held that the Eighth
Amendment prohibited the death penalty for juveniles. Then the Court in
Graham held that a juvenile could not be sentenced to life without parole
for a non-homicide crime, and that consequently the state must give the
juvenile offender of a non-homicide crime, sentenced to life without parole,
a “meaningful opportunity to obtain release.” 560 U.S. at 74-75. Finally,
in Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court held that a juvenile
offender of homicide could not be sentenced to mandatory life without
parole without violating the Eighth Amendment prohibition against cruel
and unusual punishment.

    Appellant wants this court to extend the rationale of these cases to find
that the mandatory penalty scheme for which appellant was sentenced
violates Graham and Miller, and thus, the Eighth Amendment. For sure,
these cases established the premise “that children are constitutionally
different from adults for purposes of sentencing. Because juveniles have
diminished culpability and greater prospects for reform,” “‘they are less
deserving of the most severe punishments.’” Miller, 132 S. Ct. at 2464
(quoting Graham, 560 U.S. at 68).

   Although Miller looked disapprovingly at mandatory sentencing
schemes, it limited its disapproval to those schemes that resulted in
sentences of life without parole. “[T]he mandatory penalty schemes at
issue here prevent the sentencer from taking account of . . . central
considerations. By removing youth from the balance—by subjecting a
juvenile to the same life-without-parole sentence applicable to an adult—
these laws prohibit a sentencing authority from assessing whether the
law’s harshest term of imprisonment proportionately punishes a juvenile

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offender.” Id. at 2466. Miller and Graham liken the mandatory sentencing
scheme of life without parole when imposed on a juvenile to the death
penalty.    “Life-without-parole terms, the Court wrote, ‘share some
characteristics with death sentences that are shared by no other
sentences.’” Id. (quoting Graham, 560 U.S. at 69). Thus, under Graham
and Miller, the minimum mandatory schemes that violate the Eighth
Amendment are those sentences like life without parole where the
sentencer is effectively deciding that a “juvenile offender forever will be a
danger to society” and the court is determining that the offender is
“incorrigible.” Id. at 2465 (quoting Graham, 560 U.S. at 72). In Graham,
the United States Supreme Court determined that a finding of
“incorrigibility is inconsistent with youth.” Graham, 560 U.S. at 73
(citation omitted).

    In Henry v. State, 40 Fla. L. Weekly S147 (Fla. Mar. 19, 2015), the
Florida Supreme Court considered the application of Graham where a
juvenile was sentenced to a total of ninety years. The court concluded that
Graham requires juvenile non-homicide offenders be sentenced to prison
terms that afford “a meaningful opportunity to obtain future early release
during their natural lives based on their demonstrated maturity and
rehabilitation.” Id. at S149. The court held that the constitutional
prohibition against cruel and unusual punishment under Graham was
implicated because the juvenile’s sentence would not afford him any
“meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Id. (quoting Graham, 560 U.S. at 75). The
court noted that the “the specific sentence that a juvenile nonhomicide
offender receives for committing a given offense is not dispositive as to
whether the prohibition against cruel and unusual punishment is
implicated.” Id. The court explained:

      [W]e believe that the Graham Court had no intention of
      limiting its new categorical rule to sentences denominated
      under the exclusive term of “life in prison.” Instead, we have
      determined that Graham applies to ensure that juvenile
      nonhomicide offenders will not be sentenced to terms of
      imprisonment without affording them a meaningful
      opportunity for early release based on a demonstration of
      maturity and rehabilitation.

Id. The court concluded that “the Eighth Amendment will not tolerate
prison sentences that lack a review mechanism for evaluating this special
class of offenders for demonstrable maturity and reform in the future
because any term of imprisonment for a juvenile is qualitatively different
than a comparable period of incarceration is for an adult.” Id. (citing

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Graham, 560 U.S. at 70-71). See also Gridine v. State, 40 Fla. L. Weekly
S149 (Fla. Mar. 19, 2015) (finding non-homicide juvenile offender’s
seventy-year sentence unconstitutional for the reasons explained in
Henry). Unlike in Henry and Gridine, in the present case, appellant’s
twenty-five-year mandatory minimum sentence does not deny appellant a
meaningful opportunity to obtain release.

    The minimum mandatory scheme under which appellant was
sentenced does not violate the stricture of Graham or Miller. Although a
long and significant sentence, a minimum sentence of twenty-five years
would not result in a juvenile being classified as “forever [ ] a danger to
society,” nor would that result in a finding of the offender being
“incorrigible.” Miller, 132 S. Ct. at 2465 (citation omitted). Clearly a
minimum mandatory sentence does not “share some characteristics with
death sentences that are shared by no other sentences.” Id. at 2466
(quoting Graham, 560 U.S. at 69). Unlike life without parole and death
sentences, appellant’s twenty-five-year mandatory minimum sentence is
not permanent and affords definite release. See Cotto v. State, 141 So. 3d
615, 619 (Fla. 4th DCA 2014) (“What Miller and Graham require is a
sentencing scheme that allows the court to consider a juvenile’s suitability
for rehabilitation and a possibility for release.”).

   We note that appellant does not challenge his sentence to thirty-seven
years; rather, he challenges only the twenty-five-year mandatory minimum
portion of this sentence. We also note that in response to Graham and
Miller, effective July 1, 2014, the Florida Legislature enacted legislation
providing for mandatory review of a juvenile’s sentence after twenty-five
years. § 921.1402(2)(a), (b), Fla. Stat. Obviously, appellant’s twenty-five-
year mandatory minimum sentence is in conformance with that statute.

    In sum, we conclude that a twenty-five-year minimum mandatory
sentence is unlike a life without parole sentence where the juvenile
offender does not have a “meaningful opportunity” for early release and
therefore not under the strictures of Graham and Miller. Accordingly, we
affirm appellant’s sentence.

   Affirmed.

WARNER and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.


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