Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 11, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1283 Lower Tribunal No. 07-42264A ________________ Eric Rivera, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge. Brown, Suarez, Rios & Weinberg, P.A., and Christopher H. Brown (Fort Myers), for appellant. Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee. Before SALTER, MILLER and LOBREE, JJ. PER CURIAM. Eric Rivera appeals the circuit court’s resentencing order in the aftermath of decisional and statutory changes applicable to certain juvenile offenders previously sentenced under provisions held violative of the Eighth Amendment to the United States Constitution.1 Rivera was a juvenile in 2007, when the offenses were committed. Following a trial by jury, he was convicted and sentenced for second degree murder and burglary of an occupied dwelling with an assault or battery during the commission of the burglary. His conviction and original sentence were affirmed on direct appeal. Rivera v. State, 226 So. 3d 838 (Fla. 3d DCA 2017). Following the Florida Legislature’s enactment of a new sentencing framework for juvenile offenders, sections 921.1401 and 921.1402, Florida Statutes (2014), and the Florida Supreme Court’s decision 2 holding that the new statutes should be applied retroactively in eligible cases, Rivera filed a motion and amended motion seeking a resentencing hearing and the reduction of his sentence. 3 An 1 See Miller v. Alabama, 567 U.S. 460 (2012). Rivera’s sentence of 57.5 years in state prison was a de facto life sentence, he alleged. The Florida Supreme Court’s decision in Falcon v. State, 162 So. 3d 954, 956 (Fla. 2015), held that Miller applies retroactively. 2 Horsley v. State, 160 So. 3d 393 (Fla. 2015). 3 Rivera’s motion regarding resentencing sought the reduction or modification of his sentence under Florida Rule of Criminal Procedure 3.800(c), but the motion was untimely under that rule. An order denying an untimely motion under that provision is non-appealable and would be reviewed as a petition for certiorari. Montesino v. State, 231 So. 3d 514, 515 (Fla. 3d DCA 2017). In light of Miller, Falcon, and Horsley, we treat this appeal of the resentencing order as one taken from a 2 evidentiary hearing and resentencing under the new statutes were conducted in May 2018. The witnesses included Rivera and his family members. The victim’s family, present in the courtroom, provided affidavits which were read into the record. The trial court entered a three-page order following the hearing, with ten separate findings pursuant to the requirements of section 921.1401(2) and an assessment of Rivera’s claim that his sentence was not proportional to those received by his co- defendants. Based on those findings and conclusions, all of which are supported by competent, substantial evidence, the trial court denied the amended motion to reduce Rivera’s sentence, but did amend the original sentence to reflect Rivera’s entitlement to a judicial review of his sentence after fifteen years, pursuant to section 921.1402, Florida Statutes (2015). We find no basis for reversal of the trial court’s order. Affirmed. proceeding seeking relief under sections 921.1401 and 921.1402, Florida Statutes (2015). 3