Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-403 _____________________________ ELLIS JAREL MCARTHUR, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Stephen A. Pitre, Judge. March 15, 2021 ON REMAND FROM THE FLORIDA SUPREME COURT PER CURIAM. The Florida Supreme Court quashed our decision in McArthur v. State, 280 So. 3d 558 (Fla. 1st DCA 2019), and remanded the matter for reconsideration in light of its decision in Pedroza v. State, 291 So. 3d 541 (Fla. 2020). In Pedroza, the supreme court held that “a juvenile offender’s sentence does not implicate Graham [v. Florida, 560 U.S. 48 (2010)], and therefore Miller [v. Alabama, 567 U.S. 460 (2012)], unless it meets the threshold requirement of being a life sentence or the functional equivalent of a life sentence.” Id. at 548. Appellant was sentenced to fifty years in prison. Because he did not receive “a life sentence or the functional equivalent of a life sentence,” we affirm. See id. at 549 (holding that Pedroza’s forty- year sentence was not “a life sentence or the functional equivalent of a life sentence”); see also Hart v. State, 46 Fla. L. Weekly D73, 2020 WL 7778999 (Fla. 1st DCA Dec. 31, 2020) (on remand). AFFIRMED. M.K. THOMAS and LONG, JJ., concur; BILBREY, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., concurring. Appellant was charged with second-degree murder for a crime he committed in 2009 when he was seventeen years old. During his jury trial, he changed his plea to guilty, was adjudicated guilty, and was sentenced to 50 years in prison with a 25-year mandatory minimum sentence. We affirmed his conviction and sentence on direct appeal. McArthur v. State, 68 So. 3d 903 (Fla. 1st DCA 2011). Appellant then filed a motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of trial counsel. Following an amendment to the motion and an evidentiary hearing the trial court denied the motion. We again affirmed. McArthur v. State, 162 So. 3d 991 (Fla. 1st DCA 2015). In January 2017, Appellant filed a motion for resentencing under chapter 2014-220, Laws of Florida, and that motion is the subject of this appeal. 1 In the motion, Appellant claimed that his 1 Chapter 2014-220 amended section 775.082, Florida Statutes, to provide for different penalties for certain crimes committed by juveniles; added section 921.1401, Florida Statutes, 2 50-year sentence amounted to a de facto life sentence, and that Kelsey v. State, 206 So. 3d 5 (Fla. 2016), along with various cases interpreting Kelsey and chapter 2014-220, meant that he was entitled to resentencing. The trial court appointed counsel for Appellant and directed the State to show cause why the motion should not be granted. The State responded to the order to show cause in April 2017 and conceded that Appellant was “entitled to relief and resentencing under the new juvenile laws, statutes and caselaw.” The trial court did not explicitly grant the motion for resentencing, but the parties proceeded as if resentencing were going to occur. Then in October 2018, the State filed an addendum to the show cause order and withdrew its concession to resentencing. The State cited our opinion in Hart v. State, 255 So. 3d 921 (Fla. 1st DCA 2018) (Hart I), review granted, decision quashed, Hart v. State, 2020 WL 7310947 (Fla. Dec. 11, 2020), for its contention that a 50-year sentence was not a de facto life sentence. 2 After directing that Appellant’s counsel respond to the State’s addendum, the trial court denied the motion for resentencing. The trial court analyzed various cases and held that resentencing under chapter 2014-220 is only required for sentences which violate the Eighth Amendment as explained in Miller v. Alabama, 567 U.S. 460 (2012). Appellant appealed the denial of his motion for resentencing, and we affirmed citing McCrae v. State, 267 So. 3d 470 (Fla. 1st DCA 2019), and Pedroza v. State, 244 So. 3d 1128 (Fla. 4th DCA 2018) (Pedroza I), approved, 291 So. 3d 541 (Fla. 2020) (Pedroza to specify sentencing considerations for certain crimes committed by juveniles; and added 921.1402, Florida Statutes, to provide for sentencing review for certain juvenile offenders. 2 In Hart I, we held that without a life or de facto life sentence there is no Eighth Amendment violation and so no entitlement to resentencing under chapter 2014-220. Hart I, 255 So. 3d at 927– 28. 3 II). McArthur v. State, 280 So. 3d 558 (Fla. 1st DCA 2019) (McArthur III). After Appellant sought review in the Florida Supreme Court, the Court quashed our decision in McArthur III and remanded the matter to us for reconsideration based on its Pedroza II decision. McArthur v. State, 2020 WL 7312025 (Fla. Dec. 11, 2020). 3 As the majority notes, in Pedroza II the Court upheld the forty-year sentence for second-degree murder because Pedroza did not establish that the sentence “meets the threshold requirement of being a life sentence or the functional equivalent of a life sentence.” 291 So. 3d at 548. In Levesque v. State, 300 So. 3d 813, 814 (Fla. 1st DCA 2020), we analyzed this holding from Pedroza II and concluded that a 50-year sentence for second-degree murder, with a 25-year mandatory minimum term, was not the functional equivalent of a life sentence. Here, the majority reaches the same conclusion about Appellant’s identical incarcerative sentence and finds that it is not the functional equivalent of a life sentence. I agree we are correct to affirm under Pedroza II and Levesque. I write to highlight that this is again a case in which Appellant will be treated differently than other “defendants who committed serious criminal offenses as juveniles.” Rogers v. State, 296 So. 3d 500, 519 (Fla. 1st DCA 2020) (en banc) (Bilbrey, J., concurring). Had Appellant been sentenced before the State withdrew its initial concession, he faced the prospect of receiving a shorter sentence as well as the assurance of a future sentence review hearing to again provide an opportunity to reduce the sentence. 4 3 Given that we cited Pedroza I in our opinion affirming Appellant’s sentence in McArthur III, and Pedroza I was approved by the Florida Supreme Court in Pedroza II, I assume the quashal was caused by McCrae and other previous cases from this court not using the same language as Pedroza II in discussing whether certain long, term of years sentences for juvenile offenders violate the Eighth Amendment. 4 Appellant’s criminal punishment code scoresheet in his direct appeal shows a minimum permissible sentence of twenty years and six months. See Loren v. State, 601 So. 2d 271 (Fla. 1st DCA 1992) (permitting appellate courts to take notice of the 4 See § 921.1402(2), Fla. Stat. (2017). Because of the many factors to be considered by the trial court, it is understandable that adequate preparation was necessary by both the Appellant’s counsel and the State before resentencing. See § 921.1401(2)(a)– (j), Fla. Stat. (2017) (listing “factors relevant to the offense and the defendant’s youth and attendant circumstances” to be considered by the sentencing court). But this preparation worked to Appellant’s detriment because in the interim the caselaw changed and he lost the chance to be resentenced. Juvenile offenders in various courts throughout the State with similar sentences to Appellant were no doubt resentenced under chapter 2014-220, Laws of Florida, before the Florida Supreme Court resolved the conflict among the districts in Pedroza II. 5 A possible fix for this disparate treatment of juvenile offenders may be for the Legislature to extend the benefit of chapter 2014-220 to all juvenile offenders serving long term of year sentences regardless of whether their sentences were now found to violate the Eighth Amendment as stated in Graham v. Florida, 560 U.S. 48 (2010), or Miller. Another possible fix may be the revival of parole for certain juvenile offenders. See, e.g., Washington v. State, 103 So. 3d 917, 921 (Fla. 1st DCA 2012) (Wolf, J., concurring) (“Our Legislature has repeatedly, arguably unwisely, eschewed the alternative of parole.”). A final possible fix could be the use of the clemency process. See Art. IV, § 8, Fla. Const. Either of the first two potential solutions would likely be available to the Legislature following the amendment to the Savings Clause in article X, section 9 of the Florida Constitution. See Jimenez v. Jones, 261 So. 3d 502, 504 (Fla. 2018) (noting that the amendment means “that there will no longer be any provision in the Florida Constitution that would prohibit the Legislature from applying an amended criminal statute retroactively”); Dean records in other cases before the court). But his use of a firearm in the murder meant that Appellant faced a mandatory minimum sentence of 25 years. See § 775.087(2)(a)1., 3., Fla. Stat. (2009). 5 This likely includes not only juvenile offenders convicted of murder like Appellant but also juvenile offenders convicted of lesser, but still serious felonies. 5 v. State, 303 So. 3d 257 (Fla. 5th DCA 2020). There would be no guarantee of early release, and some or even many juvenile offenders serving long sentences could be found unsuitable for it. Rather, Appellant and other similarly situated juvenile offenders with long but constitutional term of years sentences would be afforded at least “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Graham, 560 U.S. at 75, which is lacking under the current state of the law. _____________________________ Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Tabitha R. Herrera, Assistant Attorney General, Tallahassee, for Appellee. 6