Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JESSIE CRUZ, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-1138 July 19, 2023 Appeal from the Circuit Court for Manatee County; Frederick P. Mercurio, Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Jessie Cruz appeals the trial court's order denying his application for sentence modification pursuant to Florida Rule of Criminal Procedure 3.802(b)(1). Because the court fundamentally erred in giving "great weight" to the fact that his adult accomplice is not eligible for review of his life sentence, we reverse. Cruz was the middle of nine children. Born to migrant farm workers, he grew up poor, and his family moved often. Cruz frequently suffered beatings at the hands of his alcoholic father and repeatedly saw his father abuse his mother and siblings. When Cruz was eleven years old, a psychological evaluation revealed that he had been born prematurely and exhibited developmental delays. In 1996, Cruz—then a fifteen-year-old gang member—feared that the victim was going to implicate him in previous criminal activity. Accordingly, he and a nineteen-year-old accomplice lured the victim into an orange grove with the intent to murder him. In preparation, Cruz had procured a baseball bat and a knife. The accomplice twice struck the victim with the bat, and Cruz then stabbed the victim more than fifty times, telling the victim that this is what happens to snitches. Cruz was tried as an adult, was found guilty of first-degree murder, and was sentenced to life imprisonment. Pursuant to the Supreme Court's decisions in Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012), and to section 775.082(1)(b)1, Florida Statutes (2016), Cruz was resentenced in 2016 to forty years' imprisonment. In 2021, twenty-five years into his sentence, Cruz applied for a sentence review hearing pursuant to rule 3.802(b)(1) and section 921.1402, Florida Statutes (2021), and sought modification of his sentence to twenty-five years' imprisonment, with credit for all time served, followed by five years' probation. At the sentence review hearing, the trial court heard from Cruz, his mother and younger sister, a psychologist, and the victim's mother, aunt, and cousin. Additionally, the court indicated that it had reviewed the transcript of Cruz's 2016 resentencing hearing before a different judge, at which two psychologists and Cruz's family members and close friends testified. After considering the requisite factors, see § 921.1402(6), the trial court denied Cruz's application. Although finding that Cruz's "age, 2 maturity or lack thereof[,] and psychological development [had] played a role in his behavior" at the time of the offense, see § 921.1402(6)(f), the court gave that factor "moderate weight" in light of the undisputed facts of the offense, which included that Cruz, rather than having been dominated or coerced by his adult accomplice, had been the "driving force" behind a calculated, preplanned murder, see § 921.1402(6)(d). The court gave "great weight" both to Cruz's demonstrated maturity and rehabilitation since the offense, see § 921.1402(6)(a), and to "the severe physical and emotional abuse suffered at the hands of his father," see § 921.1402(6)(h).1 The trial court, however, also considered and placed "great weight" on the disproportionality between Cruz's sentence and that of his adult accomplice, who, the court noted, "was not entitled to a re-sentencing and will never have a sentence review hearing" despite being "a mere four years older than [Cruz]." Ultimately, the court explained that Cruz was not fit to re-enter society based upon the following: defendant's role in the murder, the substantial planning on the part of the Defendant, the development of a ruse to lure the victim, the procurement of both murder weapons, the stated motive of eliminating the victim as a potential "snitch" against Defendant and his fellow gang members, the shockingly brutal and gruesome murder, defendant's statements to victim while stabbing him to death, being the actual killer, the devastating effect the killing has had on the 1 The trial court also gave "great weight" to the lesser risk that Cruz poses to society currently than at his initial sentencing hearing, see § 921.1402(6)(b), and to his rehabilitation from mental illness from which he suffered at the time of the murder, see § 921.1402(6)(i). It gave "moderate weight" to Cruz's vocational, self-improvement, and self- rehabilitation activities, see § 921.1402(6)(g), and "some weight" to his showing of remorse, see § 921.1402(6)(e). But it also gave "great weight" to the continued emotional suffering of the victim's family, see § 921.1402(6)(c), as well as to the "circumstances of the crime and the role of the defendant," see § 921.1402(6)(d). 3 victim's family, and the disproportionate life sentence the four year older co-defendant (age 19) received. On appeal, Cruz argues that in refusing to modify his sentence, the trial court improperly discounted his age at the time of the offense, his demonstrated maturity and rehabilitation since then, and the effect of the abuse that he suffered as a child. But as set forth above, the court gave "great weight" to his maturity and rehabilitation since the offense and to the abuse. Although it gave only "moderate weight" to his age at the time of the offense, it did so in light of Cruz's calculated motive for the offense, his advance planning and organization, and his primary role in both instigating and executing it—factors that weigh against a determination that the offense was the product of juvenile "immaturity, irresponsibility, 'impetuousness[,] and recklessness.' " See Miller, 567 U.S. at 476 (alteration in original) (quoting Johnson v. Texas, 590 U.S. 350, 368 (1993)). We thus conclude that Cruz has failed to establish any error in the court's assessment of these factors.2 We agree, however, with Cruz's argument that the court fundamentally erred in considering and giving "great weight" to the "disproportionate" life sentence of his adult accomplice, who is eligible for neither the reduction in sentence nor sentence review to which Cruz was and is constitutionally and statutorily entitled.3 "Over the past decade, 2 Cruz does not challenge the trial court's approach to analyzing his application, i.e., its assignment of weight to the various factors, and so we do not address in this opinion whether that approach was correct. 3 There was little discussion regarding Cruz's adult accomplice at the hearing on Cruz's application, and the trial court never indicated that it was considering the accomplice's sentence as a basis for denying the application until it issued the written order saying so. In supplemental briefing, both Cruz and the State agree that we should review this issue only for fundamental error because Cruz did not move for rehearing after 4 the United States Supreme Court has issued a line of decisions establishing the legal principle that juveniles 'are constitutionally different from adults for purposes of sentencing.' " Horsley v. State, 160 So. 3d 393, 398 (Fla. 2015) (quoting Miller, 567 U.S. at 471). In response to these decisions, "the Florida legislature 'enact[ed] juvenile sentencing legislation to remedy the federal constitutional infirmities in Florida's juvenile sentencing laws.' " J.M.H. v. State, 311 So. 3d 903, 913 (Fla. 2d DCA 2020) (quoting Horsley, 160 So. 3d at 401). Among these enactments was section 921.1402, which "provides that a juvenile offender who was sentenced under section 775.082(1)(b) and was not previously convicted of an enumerated offense is 'entitled to a review of his or her sentence after 25 years.' " Id. at 914 (quoting § 921.1402(2)(a)). Pursuant to section 921.1402(6), "[u]pon receiving an application from an eligible juvenile offender, the court of original sentencing jurisdiction shall hold a sentence review hearing to determine whether the juvenile offender's sentence should be modified." A court conducting a sentence review hearing "shall consider any factor it deems appropriate," and the statute enumerates nine specific factors for the court entered its written order. We note, however, that unlike rules governing other postconviction proceedings, rule 3.802 does not explicitly authorize a motion for rehearing. Compare Fla. R. Crim. P. 3.802 (including no mention of motions for rehearing), with Fla. R. Crim. P. 3.800(b)(1)(B) ("A party may file a motion for rehearing of any signed, written order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed."); Fla. R. Crim. P. 3.801(e) (incorporating rule 3.850(j) into proceedings under this rule); 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. A motion for rehearing is not required to preserve any issue for review in the appellate court."). 5 consideration. See generally § 921.1402(6) (providing that "the court shall consider any factor it deems appropriate, including all of the following" and then listing nine specific factors at (a)-(i)). The asserted disproportionality between Cruz's sentence and the contrastingly irreducible and unreviewable life sentence of his adult accomplice is not an enumerated factor under section 921.1402(6). Although section 921.1402(6) gives a court broad discretion to "consider any factor it deems appropriate," that discretion is not wholly unfettered: the factor necessarily must be consistent with the statutory scheme, which "focuses on what the juvenile has done since [he] committed the crime and how [he] has changed," Falcon v. State, 341 So. 3d 386, 391 (Fla. 1st DCA 2022) (emphasis added), for the purpose of recognizing the differences of constitutional magnitude between juveniles and adults for sentencing purposes, see J.M.H., 311 So. 3d at 912–13. Denying Cruz's application in part because his adult accomplice received a life sentence that is not eligible for reduction or review is not merely inconsistent with section 921.1402 but contrary to its very raison d'être.4 4 We also note that a finding of "disproportionality" in sentence necessarily assumes that those being compared are similarly situated, cf. United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (rejecting claim of unwarranted disparity between the sentence imposed on a defendant who was prosecuted in federal court and went to trial and the sentences imposed on his codefendants who were prosecuted in state court and pled guilty); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005) ("A well-founded claim of disparity . . . assumes that apples are being compared to apples."), an assumption that cannot be made here because Cruz was a juvenile and his accomplice was an adult. That the adult accomplice was only a few years older than Cruz is irrelevant. "The United States Supreme Court has held that there is a bright line between being a juvenile and an adult; that line is eighteen." Farmer v. State, 268 So. 3d 1009, 1009 (Fla. 1st DCA 2019). Florida— and "society, as a whole"—continues to hew to that bright line. See id. at 1009–11 (collecting cases and statutes; quoted language at 1010). 6 We therefore conclude that the court fundamentally erred in including this consideration in its calculus, let alone in affording it "great weight." Cf. Smith v. State, 62 So. 3d 698, 700 (Fla. 2d DCA 2011) (holding that the trial court's consideration of improper factors at sentencing denied the defendant of due process and constituted fundamental error). Accordingly, we reverse the denial of Cruz's application for modification of sentence and remand for a new hearing on the application before a different judge. See id. In light of our observation at footnote 3, supra, the Florida Bar's Criminal Procedure Rules Committee may wish to clarify whether a motion for rehearing is authorized under rule 3.802 and necessary to preserve any issues for review. Reversed and remanded with directions. CASANUEVA and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 7