Full Opinion

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA August 21, 2020 KEITH HARTLEY WITTEMEN, ) ) Appellant, ) ) v. ) Case No. 2D19-292 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) BY ORDER OF THE COURT: Upon consideration of the relief sought in Appellant's motion to recall the mandate, filed April 9, 2020, relief is granted, and this court's prior opinion dated December 13, 2019, is withdrawn. The attached opinion is issued in its place. No further motions for rehearing will be entertained in this appeal. I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. MARY ELIZABETH KUENZEL, CLERK IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KEITH HARTLEY WITTEMEN, ) ) Appellant, ) ) v. ) Case No. 2D19-292 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed August 21, 2020. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; George C. Richards, Judge. Allison Ferber Miller, Clearwater, for Appellant. CASANUEVA, Judge. On December 13, 2019, this court affirmed the denial of Keith Hartley Wittemen's motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The mandate issued on January 15, 2020. However, in a subsequent motion to recall the mandate, Mr. Wittemen argued that the postconviction court lacked jurisdiction to deny his motion. Upon careful consideration, we agree. We now reverse the postconviction court's order and remand for resentencing. On September 3, 1994, at the age of seventeen, Mr. Wittemen was charged with first-degree premeditated murder. A jury found Mr. Wittemen guilty as charged, and he was sentenced to life in prison without the possibility of parole for twenty-five years. On May 12, 2017, Mr. Wittemen filed a rule 3.850 motion for postconviction relief, alleging that his sentence was unconstitutional in accordance with Miller v. Alabama, 567 U.S. 460, 489 (2012) (holding that the Eighth Amendment of the United States Constitution is violated when a court imposes on a juvenile homicide offender a mandatory sentence of life in prison without the possibility of parole), and Atwell v. State, 197 So. 3d 1040, 1041 (Fla. 2016) (holding that under Florida's existing parole system, a sentence of life with the possibility of parole after twenty-five years is indistinguishable from a life without parole sentence because Florida's parole system does not provide for individualized consideration of a juvenile's status at the time of the offense). Relying on Miller and Atwell, the postconviction court granted Mr. Wittemen's motion on October 30, 2017, concluding that Mr. Wittemen was entitled to a resentencing hearing, because Florida's parole system did "not provide the individualized sentencing considerations required by case law and statute." Before Mr. Wittemen's resentencing hearing could take place, the State, relying on the Florida Supreme Court's decision in State v. Michel, 257 So. 3d 3 (Fla. 2018), moved for reconsideration of the postconviction court's order, arguing that resentencing was not required because Mr. Wittemen's sentence was not unconstitutional according to the new case law. After consideration of Michel, in which the Florida Supreme Court held that "juvenile offenders' sentences of life with the -2- possibility of parole after 25 years do not violate the Eighth Amendment of the United States Constitution," the postconviction court found that Mr. Wittemen's sentence was lawful and that the court lacked jurisdiction to modify his sentence. Id. at 4. The court granted the State's motion for reconsideration, vacated the order granting a resentencing hearing, and denied Mr. Wittemen's motion for postconviction relief. The facts of this case are substantially similar to the facts in Croft v. State, 295 So. 3d 307 (Fla. 2d DCA 2020). In Croft, the defendant, like Mr. Wittemen, was sentenced to life in prison without the possibility of parole for twenty-five years for a murder he committed as a minor. Id. at 308. Croft later filed a rule 3.850 motion, arguing that he was entitled to resentencing based on case law from the United States and Florida Supreme Courts. Id. at 308. The postconviction court granted Croft's motion and directed that a resentencing hearing be scheduled. Id. at 308. But before resentencing could occur, the Florida Supreme Court issued its decision in Michel. Id. As in this case, the State moved for reconsideration of the postconviction court's order. Id. at 308. After a hearing, the motion for reconsideration was granted, and Croft's rule 3.850 motion was denied. Id. at 309. As we explained in Croft, the decision to file a rule 3.850 motion was significant. Had Mr. Wittemen filed his postconviction motion under Florida Rule of Criminal Procedure 3.800(a), rather than rule 3.850, he would not be entitled to relief. See Morgan v. State, 293 So. 3d 1081, 1085 (Fla. 2d DCA 2020) ("[A]n order granting a rule 3.800(a) motion is not a final appealable order. Thus, the postconviction court had jurisdiction at the time the State sought reconsideration of the ruling [granting a request for resentencing]; the ruling was an interlocutory order which the court had inherent -3- authority to reconsider upon request by a party."), review granted, No. SC20-641, 2020 WL 3494396 (Fla. June 29, 2020). However, because Mr. Wittemen filed a rule 3.850 motion, the postconviction order granting Mr. Wittemen's motion was a final appealable order. See Croft, 295 So. 3d at 309; see also Taylor v. State, 140 So. 3d 526, 528 (Fla. 2014) ("[A]n order disposing of a [rule 3.850] motion which partially denies and partially grants relief is a final order for purposes of appeal, even if the relief granted requires subsequent action in the underlying case, such as resentencing."). The postconviction court therefore lacked jurisdiction to rescind its original order on the basis of an untimely rehearing motion by the State. See Fla. R. Crim. P. 3.850(j) ("Any party may file a motion for rehearing of any order addressing a motion under this rule within 15 days of the date of service of the order."). Accordingly, we reverse the postconviction court's December 2018 order, reinstate the October 2017 order, and remand for the postconviction court to conduct a resentencing hearing. We note, as we did in Croft, 295 So. 3d at 309 (quoting State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011)), that "the decisional law effective at the time of the resentencing applies." State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Thus, it is possible that Mr. Wittemen may still receive the same sentence upon resentencing. Reversed and remanded with instructions. MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur. -4-