Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D18-942 ) KYLE DYLAN MORAN, ) ) Appellee. ) ) Opinion filed March 20, 2020. Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant. LaROSE, Judge. The State seeks review of Kyle Dylan Moran's first-degree murder sentence, imposed following the trial court's finding that section 775.082(1)(b)(1), Florida Statutes (2017), is unconstitutional.1 We have jurisdiction. See § 924.07(1)(e), 1The trial court also resentenced Mr. Moran to concurrent terms of twenty- four years' imprisonment for armed burglary and attempted armed robbery. The State Fla. Stat. (2018) (permitting the State to appeal "[t]he sentence, on the ground that it is illegal"); Fla. R. App. P. 9.140(c)(1)(M) (authorizing the State to appeal an order "imposing an unlawful or illegal sentence"). We reverse and remand for resentencing. Background The State indicted Mr. Moran for first-degree murder. He was sixteen years of age at the time of the crime. In 1995, after the jury found him guilty, the trial court sentenced him to life imprisonment. Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), Mr. Moran moved to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion, finding that Miller did not apply retroactively. We reversed and "remand[ed] for a resentencing proceeding consistent with [section 775.082]." Moran v. State, 164 So. 3d 68, 68 (Fla. 2d DCA 2015). On remand, Mr. Moran moved to declare section 775.082(1)(b)(1) unconstitutional. He argued that the mandatory minimum forty-year sentence ran afoul of Miller because it "divests the trial court of any meaningful sentencing discretion." See § 775.082(1)(b)(1) (permitting imposition of either a life sentence or a forty-year minimum sentence with review after twenty-five years for a juvenile convicted of a capital offense under section 782.04, Florida Statutes 2017)). The trial court agreed, reasoning that the "minimum mandatory sentence required by the statute restricts the court's ability to fashion" an individualized sentence as contemplated by Miller. Thus, the trial court vacated Mr. Moran's life sentence and resentenced him to twenty-four years' imprisonment followed by a twenty-year probationary term. does not challenge these sentences on appeal. Thus, we affirm those sentences without further comment. -2- On appeal, the State asserts that "[a] sentence with a non-life minimum mandatory imposed against a juvenile offender facing a potential life sentence does not violate Miller as long as the juvenile was given an individualized sentencing hearing under section 921.1401[, Florida Statutes (2017),] and was provided judicial review pursuant to section 921.1402." Consequently, the State urges that Mr. Moran's twenty- four-year sentence is illegal as it is undercuts the mandatory minimum forty-year sentence called for by section 775.082(1)(b)(1). Analysis We recently rejected the same argument advanced by Mr. Moran. In Bailey v. State, 277 So. 3d 173, 176 (Fla. 2d DCA 2019), the defendant "argue[d] that the forty-year minimum sentence in section 775.082(1)(b)(1) is unconstitutional" because "the statute takes away the discretion of the trial court and requires the trial court to impose a certain sentence, despite the Supreme Court's directive that juveniles are entitled to individualized sentencing hearings." We observed, however, that Miller "does not extend to Bailey's [forty-year mandatory minimum sentence with review after twenty-five years] imposed pursuant to section 775.082(1)(b)(1), where he received the individualized sentencing hearing required by Miller (codified in section 921.1401(1)) and where he will receive a review of his sentence after twenty-five years." Bailey, 277 So. 3d at 177. The same holds true for Mr. Moran. Section 775.082(1)(b)(1) is not unconstitutional under Miller. 567 U.S. at 479 ("[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders."). Under Miller, the constitutionally problematic part of the sentencing scheme was the automatic imposition of the "harshest" and "most severe" penalty, -3- without provision for any individualized review proceeding. Id. at 472, 474, 477, 479, 489. But section 775.082(1)(b)(1) entitles a defendant to the "individualized sentencing hearing required by Miller . . . where he will receive a review of his sentence after twenty-five years." Bailey, 277 So. 3d at 177. As a result of the trial court's mistaken reading and application of Miller, Mr. Moran's March 2018 sentence is illegal. See Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) ("[A] sentence is 'illegal' if it 'imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.' " (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999))); cf. State v. Kremer, 114 So. 3d 420, 421 (Fla. 5th DCA 2013) ("[A] sentence is illegal when it is shorter than the required mandatory minimum sentence." (citing State v. Strazdins, 890 So. 2d 334, 335 (Fla. 2d DCA 2004))). We reverse the murder sentence, and remand for resentencing consistent with section 775.082(1)(b)(1). Affirmed, in part; reversed, in part, and remanded with instructions. NORTHCUTT and SMITH, JJ., Concur. -4-