Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FABIO NICHOLAS NUGENT, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2196 May 11, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Brooke Elvington, Dunedin, for Appellant. LaROSE, Judge. Fabio Nicholas Nugent was convicted and sentenced for a murder and robbery committed when he was sixteen. He now appeals an order denying his motion for postconviction relief. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm. Background In 2003, the State indicted Mr. Nugent for first-degree murder and robbery with a deadly weapon. He pleaded guilty to second- degree murder and armed robbery with a deadly weapon. The trial court imposed concurrent terms of twenty-five years' imprisonment followed by fifteen years' probation for each offense. Years later, Mr. Nugent filed his "Motion to Vacate or Set Aside the Sentence(s) Imposed in This Case Based on Graham and Kelsey and Grant a Resentencing Hearing and/or Judicial Review." He raised two claims. First, he contended that his sentences are illegal because they do not afford him a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham v. Florida, 560 U.S. 48, 75 (2010) ("A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."). Mr. Nugent contended that under Henry v. State, 175 So. 3d 675, 679-80 (Fla. 2015), an 2 aggregate term of years that constitutes a life sentence for a nonhomicide juvenile defendant is unconstitutional. Second, he argued that he is entitled to judicial review of his sentences under section 921.1402, Florida Statutes (2017). Relying on Kelsey v. State, 206 So. 3d 5, 8 (Fla. 2016), he asserted that all juvenile offenders whose sentences exceed twenty years' imprisonment are entitled to judicial review.1 The postconviction court summarily denied relief. Analysis We review de novo the postconviction court's denial of a motion challenging an allegedly illegal sentence. See Jimenez v. State, 265 So. 3d 462, 476 n.10 (Fla. 2018); see also Clough v. State, 136 So. 3d 680, 681 (Fla. 2d DCA 2014) (reviewing de novo "a trial court's legal conclusions made in ruling on [a] postconviction motion" (citing Nelson v. State, 43 So. 3d 20, 28 (Fla. 2010))). I. Claim One: Juvenile Resentencing Mr. Nugent's sentences are not illegal. Consequently, he is not entitled to resentencing. 1 Mr. Nugent's second claim does not appear to distinguish between his homicide and nonhomicide offenses. 3 The Florida Supreme Court recently clarified some "[c]onfusing and [e]rroneous language" in its prior juvenile sentencing jurisprudence. Pedroza v. State, 291 So. 3d 541, 546 (Fla. 2020). Pedroza established a simple rule: "[A] juvenile offender's sentence does not implicate Graham, 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." Pedroza, 291 So. 3d at 548. Mr. Nugent's sentences are neither. In Pedroza, the supreme court approved the Fourth District's decision upholding a juvenile offender's forty-year sentence for second-degree murder. Id. at 543, 549. The supreme court held that the sentence was not unconstitutional under the Eighth Amendment and that Mr. Pedroza was not entitled to resentencing. Id. at 548; see amend. VIII, U.S. Const. ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). In coming to this conclusion, the supreme court explained that the Eighth Amendment "is implicated when a juvenile nonhomicide offender's sentence does not afford any 'meaningful opportunity to obtain release based on demonstrated maturity and 4 rehabilitation,' " as applicable only to " 'lengthy' term-of-years sentences that approach or envelop the entirety of a defendant's 'natural life.' " Pedroza, 291 So. 3d at 546 (quoting Henry, 175 So. 3d at 679). Moreover, Pedroza clarified that resentencing for juvenile offenders sentenced to more than twenty years' imprisonment is limited to a "narrow class" of juvenile offenders whose sentences violated Graham and were resentenced before the adoption of chapter 2014-220. Id. at 546-48 (quoting Kelsey, 503 So. 3d at 10). Pedroza receded from and disapproved of several cases "to the extent they hold that resentencing is required for all juvenile offenders serving a sentence longer than twenty years without the opportunity for early release based on demonstrated maturity and rehabilitation." Id. at 549. Our cases hold the same. Recently, we "conclude[d] that [a juvenile offender's] thirty-year sentence [for aggravated battery with great bodily harm while using a deadly weapon] is not unconstitutional under the holding in Graham because it is not a life sentence or the functional equivalent of a life sentence." Melvis v. State, 305 So. 3d 763, 766 (Fla. 2d DCA 2020). 5 In State v. Morales, 299 So. 3d 528, 529-30 (Fla. 2d DCA 2020), we reversed and remanded after the postconviction court granted the juvenile offender's postconviction motion and resentenced him to twenty years' imprisonment for kidnapping. We concluded that the juvenile offender's original thirty-year sentence was not illegal under Pedroza and directed the postconviction court to reinstate the original sentence. Id.; see also Wainwright v. State, 296 So. 3d 952, 952 (Fla. 2d DCA 2020) (affirming juvenile offender's sentences pursuant to Pedroza); Williams v. State, 197 So. 3d 569, 572 (Fla. 2d DCA 2016) ("Even if Williams is required to serve every day of his fifty-year sentence [for armed kidnapping of a minor under the age of thirteen; attempted robbery with a firearm; and aggravated assault with a firearm,] he would be released from prison at age sixty-eight. Williams will be afforded the opportunity for release, based on demonstrated maturity and rehabilitation, during his natural life."). Our sister districts, too, have applied Pedroza to a variety of term-of-years sentences and found no Eighth Amendment violation. See, e.g., Grace v. State, 324 So. 3d 552, 552 (Fla. 1st DCA 2021) ("A jury found Grace guilty of four counts of robbery with a firearm 6 while wearing a mask; two counts of attempted robbery while wearing a mask; and two counts of false imprisonment while wearing a mask. Grace was 17 years old when the offenses were committed. The court sentenced him to a total of 50 years in prison. Like Pedroza, Grace does not meet the threshold for resentencing because his sentence is not a life sentence or the functional equivalent of a life sentence."); Brown v. State, 315 So. 3d 795, 795 (Fla. 1st DCA 2021) (affirming postconviction court's order denying juvenile offender's rule 3.800(a) motion challenging his sentence of forty years' imprisonment because "this is not the functional equivalent of a life sentence"); Hall v. State, 319 So. 3d 691, 697 (Fla. 3d DCA 2021) (rejecting juvenile offender's as-applied challenge to the constitutionality of section 775.082(1)(b)(1), Florida Statutes (2021), because "controlling precedent in Florida shows not only that these sections comply with the dictates of Miller and Graham, but that Hall's sentence [of fifty years' imprisonment with a forty-year mandatory minimum for first-degree murder] does not even trigger Miller-Graham to begin with"); Kirkland v. State, 312 So. 3d 1276, 1277 (Fla. 1st DCA 2021) (affirming juvenile offender's forty-year prison sentence because, "[u]nder Pedroza, a forty-year 7 sentence is not a life sentence or its functional equivalent"); McArthur v. State, 313 So. 3d 244, 245 (Fla. 1st DCA 2021) (affirming juvenile offender's fifty-year sentence for second-degree murder "[b]ecause he did not receive 'a life sentence or the functional equivalent of a life sentence' " (quoting Pedroza, 291 So. 3d at 549)); Jones v. State, 320 So. 3d 220, 221 (Fla. 1st DCA 2021) (affirming juvenile offender's "aggregate [sentence] of fifty years in prison"); Corbett v. State, 310 So. 3d 54, 54 (Fla. 4th DCA 2021) ("Under Pedroza, Appellant's 30-year prison sentence for a non- homicide offense is not the functional equivalent of a life sentence, and Graham . . . and Miller . . . are not implicated."); Hart v. State, 313 So. 3d 155, 155 (Fla. 1st DCA 2020) (affirming juvenile offender's "aggregate [sentence] of fifty years in prison"); Shivers v. State, 308 So. 3d 176, 179 (Fla. 4th DCA 2020) (affirming juvenile offender's sentence of twenty-five-years' imprisonment for aggravated battery with a deadly weapon while masked because the sentence "does not, by itself, violate Graham or Miller"); Levesque v. State, 300 So. 3d 813, 814 (Fla. 1st DCA 2020) (analyzing Pedroza and concluding that sentence of fifty-years' imprisonment with a twenty-five-year mandatory minimum term for second-degree 8 murder, committed when juvenile offender was seventeen years' old, was not the functional equivalent of a life sentence); Moss v. State, 305 So. 3d 730, 731 (Fla. 3d DCA 2020) (affirming postconviction court's order denying juvenile offender's postconviction motion challenging his forty-year sentence for second-degree murder). Mr. Nugent's sentences are not life sentences nor the functional equivalent. As the postconviction court observed, Mr. Nugent is slated for release from prison in January 2025; he will be about thirty-eight years old. He will be free of all supervision at age fifty-three. We reject Mr. Nugent's challenge to the legality of his sentences. He is not entitled to resentencing. II. Claim Two: Sentence Review Mr. Nugent is not due a sentence review under section 921.1402. Our recent decision in State v. Michaud, 320 So. 3d 860 (Fla. 2d DCA 2021), controls. There, the State sought certiorari review of the trial court's order granting Mr. Michaud's application for sentence review stemming from his juvenile murder conviction and sentence of life imprisonment with the possibility of parole after 9 twenty-five years. Id. at 861-62. We granted the petition and quashed the trial court's order: Michaud sought a sentence review under section 921.1402, which applies to juvenile offenders sentenced to prison "for an offense committed on or after July 1, 2014." § 921.1402(1)[, Fla. Stat. (2019)]. This statute has been held to apply retroactively to "all juvenile offenders whose sentences are unconstitutional under Miller, even if the juvenile's offense was committed prior to the July 1, 2014, effective date of the legislation." Falcon v. State, 162 So. 3d 954, 963 (Fla. 2015), receded from on other grounds by Williams v. State, 242 So. 3d 280 (Fla. 2018). This does not include Michaud, whose offense occurred prior to July 1, 2014, and whose sentence has been determined to be constitutional. See [State v. Michel, 257 So. 3d 3, 4 (Fla. 2018)] (holding that "juvenile offenders' sentences of life with the possibility of parole after 25 years do not violate the Eighth Amendment of the United States Constitution as delineated by the United States Supreme Court" in Miller/Graham and that "[t]herefore, such juvenile offenders are not entitled to resentencing under section 921.1402"). Id. at 862 (third alteration in original). As we previously explained, Mr. Nugent's sentences are legal. And, his offenses occurred before July 1, 2014. Thus, he is not entitled to sentence review under section 921.1402. Insofar as Mr. Nugent contends that he is entitled to a sentence review and resentencing because his sentences are over twenty years, he is wrong. Pedroza rejected this argument. 291 So. 10 3d at 546-48 (explaining that Kelsey should be read "as a statement of the necessity of including judicial review and an opportunity for early release in the remedy for any Graham violation and not as a means of defining when an Eighth Amendment violation occurs"). Recall that resentencing for juvenile offenders sentenced to more than twenty years' imprisonment is limited to a "narrow class" of juvenile offenders who had sentences that violated Graham and were resentenced before the adoption of chapter 2014-220. Id. (quoting Kelsey, 206 So. 3d at 10). That is not our case. To bolster his claim, Mr. Nugent contends that Michaud conflicts with our opinion in Elkin v. State, 249 So. 3d 1316 (Fla. 2d DCA 2018). He also claims that Michaud "appears to be in conflict with the Fifth District . . . which has affirmed trial court orders modifying sentences to permit judicial review post-Pedroza." A. Alleged Conflict between Michaud and Elkin Michaud distinguished Elkin: [T]he Elkin opinion did not address whether Elkin's sentence of twenty-five years was unconstitutional under Miller/Graham. Here, the circuit court properly ruled that Michaud's sentence was constitutional under Miller/Graham. Elkin does not apply to cases such as this one, where a juvenile offender's sentence has been ruled constitutional under Miller/Graham. Michaud is 11 not entitled to relief under section 921.1402 because his offense occurred prior to July 1, 2014, and his sentence is constitutional . . . . Michaud, 320 So. 3d at 862 (emphasis added). Despite significant differences between the two cases, Mr. Nugent urges us to address the seeming discord between Michaud and Elkin. The discord is not readily apparent. We have determined that Mr. Nugent's sentences are constitutional, so we need not resolve the alleged schism he observes. After all, "if it is not necessary to decide more, it is necessary not to decide more." PDK Lab'ys, Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). B. Michaud and the Allegedly Conflicting Fifth District Cases We cannot agree with Mr. Nugent that Michaud conflicts with a pair of Fifth District cases—Gilchrist v. State, 299 So. 3d 620 (Fla. 5th DCA 2020) ("Gilchrist II"), and Santiago v. State, 301 So. 3d 494 (Fla. 5th DCA 2020) ("Santiago II"). i. Gilchrist II At age seventeen, Deon Cornell Gilchrist committed several robberies with a firearm. See Gilchrist v. State, 277 So. 3d 638, 638 12 (Fla. 5th DCA 2019) ("Gilchrist I"). He pleaded guilty and the trial court sentenced him to concurrent terms of twenty-five years' imprisonment. Id. Mr. Gilchrist filed a rule 3.800(a) motion to correct illegal sentence "argu[ing] that he was entitled to a full resentencing hearing and judicial review of his sentence[s]." Id. The postconviction court partially granted Mr. Gilchrist's motion and amended the sentencing documents to provide for juvenile sentence review hearings, but denied Mr. Gilchrist a resentencing hearing. Id. On appeal, the Fifth District "affirm[ed] the trial court's order amending the sentences to provide for a review hearing, but reverse[d] and remand[ed] to allow the court to conduct a full resentencing hearing." Id. at 639. However, the Florida Supreme Court quashed Gilchrist I, and remanded the case to the Fifth District "for reconsideration upon application of our decision [in] Pedroza." Gilchrist v. State, Case No. SC19-613, 2020 WL 3790417 at *1 (Fla. July 7, 2020). On remand, the Fifth District "affirm[ed] the trial court's order amending the sentences to provide for a review hearing and denying resentencing." Gilchrist II, 299 So. 3d at 621. 13 With that background, we see no conflict between Michaud and Gilchrist II. In Michaud, we concluded that Mr. Michaud was not entitled to a sentence review "because his offense occurred prior to July 1, 2014, and his sentence is constitutional." 320 So. 3d at 862. In Gilchrist II, the Fifth District merely repeated, by way of background, its original holding that "it [wa]s error to modify a juvenile defendant's sentence to allow for a review hearing without also holding a resentencing hearing under sections 775.082, 921.1401 and 921.1402." 299 So. 3d at 621. Quite simply, we have determined that Mr. Nugent is neither entitled to resentencing nor a review hearing. The so-called conflict is ephemeral. Cf. Dep't of Health & Rehab. Servs. v. Nat'l Adoption Counseling Serv., Inc., 498 So. 2d 888, 889 (Fla. 1986) ("[I]nherent or so called 'implied' conflict may no longer serve as a basis for this Court's jurisdiction."). ii. Santiago II Damian David Santiago pleaded guilty to second-degree murder with a firearm, an offense he committed at age sixteen. Santiago v. State, 254 So. 3d 1125, 1126 (Fla. 5th DCA 2018) 14 ("Santiago I"). The trial court sentenced him to thirty-five years' imprisonment. Id. Mr. Santiago filed a rule 3.850 motion, arguing that "he was entitled to receive judicial review of his sentence as well as a full resentencing hearing." Id. In part, the postconviction court granted the motion, amending the sentence to allow for a juvenile sentence review hearing, but the postconviction court also denied the request for a resentencing hearing because the sentence was not an unconstitutional de facto life sentence. Id. On appeal, the Fifth District focused upon the legality of the sentence. The Fifth District concluded that the thirty-five-year sentence was unconstitutional and certified conflict with the Fourth District's decision in Pedroza v. State, 244 So. 3d 1128 (Fla. 4th DCA 2018). Almost as an after-thought, the Fifth District "affirm[ed] the trial court's ruling amending the sentencing documents to provide for a judicial review hearing, but reverse[d] and remand[ed] for the court to conduct a full resentencing hearing." Santiago I, 254 So. 3d at 1126. The Fifth District thereafter granted the State's motion to recall and stay the mandate 15 pending the Florida Supreme Court's review of Pedroza. Santiago II, 301 So. 3d at 495. After Pedroza issued, the Fifth District concluded that Mr. Santiago's thirty-five-year sentence was constitutional. Id. And, in a single line, it "affirm[ed] the postconviction court's order amending the sentence to provide for a review hearing and denying resentencing." Id. We are hard-pressed to see any conflict with Michaud. Cf. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) ("Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision."). We cannot discern whether the facts before us are substantially the same as those in Mr. Santiago's case. See Kartsonis v. State, 319 So. 3d 622, 623 (Fla. 2021) (" 'Express and direct conflict' is a strict standard that requires either the announcement of a conflicting rule of law or the application of a rule of law in a manner that results in a conflicting outcome despite 'substantially the same controlling facts.' " (quoting Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960))). For instance, neither Santiago I nor Santiago II informs us whether Mr. Santiago committed the offense of second-degree murder with a 16 firearm prior to, or after, July 1, 2014. Thus, we must conclude that on the four corners of Michaud and Santiago II, there is no discernable conflict. Conclusion We affirm the postconviction court's order denying Mr. Nugent's postconviction motion. Affirmed. KHOUZAM and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 17