Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1767 _____________________________ KRISTEL ROSE MAESTAS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge. April 20, 2021 PER CURIAM. Appellant, Kristel Maestas, and Ronald Bell were convicted for the kidnapping and murder of Cordell Richards. Appellant raises three issues on appeal, only one of which has merit. We affirm her first two issues without comment. We reverse and remand her the third issue for the reasons discussed herein. Appellant and Mr. Bell were juveniles at the time of the murder. On April 17, 2000, Appellant was convicted of first-degree felony murder (count 1) and armed kidnapping (count 2) and sentenced to consecutive terms of life in prison. Following the decision in Graham v. Florida, 560 U.S. 48 (2010), Appellant successfully challenged her life sentence in count 2 and was resentenced to thirty years in prison to run consecutively to the life sentence in count 1. In 2015, Appellant filed a motion for postconviction relief under Miller v. Alabama, 567 U.S. 460 (2012), and Falcon v. State, 162 So. 3d 954 (Fla. 2015), arguing her life sentence in count 1 was unconstitutional and she was entitled to a subsequent judicial review of her sentence. The lower court set a resentencing hearing pursuant to sections 921.1401, 921.1402, and 775.082, Florida Statutes. The evidence and argument at the 2018 resentencing hearing focused on the propriety of Appellant’s life sentence under section 921.1401. Defense counsel noted, depending on the court’s decision in the resentencing, Appellant would be entitled to a section 921.1402 sentence review at a later date and asked the court to order such review. The lower court’s sentencing order made lengthy findings – supported by competent, substantial evidence – under the factors in section 921.1401(2)(a)-(j) and affirmed Appellant’s life sentence in count 1. With regard to the section 921.1402 review, the court made findings “out of an abundance of caution.” The court found Appellant would be entitled to a section 921.1402 review hearing on count 1 “after serving fifteen years, beginning April 17, 2000. However, because [she] has already served fifteen years and has had the benefit of this resentencing proceeding, a sentencing review on count one is unnecessary.” The court found Appellant would be eligible for a section 921.1402 review only on count 2, after serving twenty years, beginning April 17, 2000. In her third issue on appeal, Appellant argues the lower court erred in denying her request for a section 921.1402 review on count 1, finding it unnecessary because she had already served fifteen years and had the benefit of the section 921.1401 hearing. We agree. We recently considered a similar issue in co-defendant Bell’s case. Bell v. State, No. 1D19-1542, 2021 WL 670449 (Fla. 1st DCA February 22, 2021). In Bell, the lower court sua sponte conducted a section 921.1402 sentence review at Bell’s section 921.1401 resentencing hearing. Bell’s sentencing order was similar to the Appellant’s in that the lower court made section 921.1402 findings 2 “out of an abundance of caution” and determined an additional sentence review was unnecessary because Bell had already served fifteen years and had the benefit of the resentencing hearing. The panel in Bell held the lower court’s conflated section 921.1402 review was inappropriate because Bell had not initiated the review via an application to the court of original jurisdiction. Bell, 2021 WL 670449 at *5. While Appellant’s order setting the resentencing hearing did reference section 921.1402, defense counsel made clear they were asking for that review later in a separate proceeding. Appellant has a right to an independent sentence review under section 921.1402, and the lower court deprived her of such by deeming the section 921.1401 resentencing hearing sufficient. We reverse the portion of the sentencing order denying Appellant’s request for a sentence review under section 921.1402. We affirm the remainder of the order on review. AFFIRMED in part, REVERSED in part, and REMANDED. ROBERTS, OSTERHAUS, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for Appellant. Ashley Moody, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee. 3