Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFFREY MURPHY, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-642 July 26, 2023 Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge. Sara Mollo, Public Defender; Maria DeLiberato and Stacey M. Schroeder, Assistant Public Defenders, Clearwater, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Senior Assistant Attorney General, Tampa, for Appellee. PER CURIAM. We have for review the trial court's order rejecting Jeffrey Murphy's request to modify his sentence pursuant to section 921.1402, Florida Statutes (2022). Section 921.1402, titled "Review of sentences for persons convicted of specified offenses committed while under the age of 18 years," in pertinent part provides: (6) Upon 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. When determining if it is appropriate to modify the juvenile offender's sentence, the court shall consider any factor it deems appropriate, including all the following: (a) Whether the juvenile offender demonstrates maturity and rehabilitation. (b) Whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing. (c) The opinion of the victim or the victim's next of kin. The absence of the victim or the victim's next of kin from the sentence review hearing may not be a factor in the determination of the court under this section. The court shall permit the victim or victim's next of kin to be heard, in person, in writing, or by electronic means. If the victim or the victim's next of kin chooses not to participate in the hearing, the court may consider previous statements made by the victim or the victim's next of kin during the trial, initial sentencing phase, or subsequent sentencing review hearings. (d) Whether the juvenile offender was a relatively minor participant in the criminal offense or acted under extreme duress or the domination of another person. (e) Whether the juvenile offender has shown sincere and sustained remorse for the criminal offense. (f) Whether the juvenile offender's age, maturity, and psychological development at the time of the offense affected his or her behavior. (g) Whether the juvenile offender has successfully obtained a high school equivalency diploma or completed another educational, technical, work, vocational, or self-rehabilitation program, if such a program is available. 2 (h) Whether the juvenile offender was a victim of sexual, physical, or emotional abuse before he or she committed the offense. (i) The results of any mental health assessment, risk assessment, or evaluation of the juvenile offender as to rehabilitation. (7) If the court determines at a sentence review hearing that the juvenile offender has been rehabilitated and is reasonably believed to be fit to reenter society, the court shall modify the sentence and impose a term of probation of at least 5 years. If the court determines that the juvenile offender has not demonstrated rehabilitation or is not fit to reenter society, the court shall issue a written order stating the reasons why the sentence is not being modified. The trial court's task at a sentence review hearing is singular: determine whether "the juvenile offender has been rehabilitated and is reasonably believed to be fit to reenter society." § 921.1402(7). To aid the trial court in completing this task, the statute requires the trial court to conduct an evidentiary hearing at which the juvenile can demonstrate that he has been "rehabilitated and is reasonably believed to be fit to reenter society."1 § 921.1402(6). If the juvenile offender demonstrates both rehabilitation and that he is fit to reenter society, the statute provides that the trial court "shall modify the sentence and impose a term of probation of at least 5 years." § 921.1402(7). Here, the trial court concluded that Murphy did not demonstrate either that he was rehabilitated or that he was fit to reenter society. On appeal Murphy 1 It is implicit in the statute that the juvenile offender has the burden of proof and that it requires a preponderance of the evidence to satisfy that burden. The legislature knows how to impose a higher burden of proof should it desire to do so. 3 argues, and we agree, that the trial court's conclusion was not supported by competent substantial evidence. At the sentence review hearing Murphy presented the unrebutted testimony of a forensic psychologist who had specialized knowledge in clinical and forensic psychology, juvenile forensic assessment, violence risk assessment, and assessment of malingering. He testified that Murphy is rehabilitated and is fit to renter society. The State did not object to the psychologist's qualifications as an expert witness, nor did it present any evidence to rebut his testimony or Murphy's other evidence of maturation, rehabilitation, and suitability for reentry to society. The State did not have an expert evaluate Murphy or otherwise seek to contradict the expert's conclusions. In fact, at oral argument the State conceded this expert testimony was uncontroverted. See Tindall v. State, 310 So. 3d 95, 101 (Fla. 4th DCA 2021) ("[T]he court can only reject undisputed testimony from an expert when it either concerns technical evidence and 'is so palpably incredible, illogical, and unreasonable as to be unworthy of belief or otherwise open to doubt[,]' or when it concerns non-expert matters and is disputed by lay testimony." (quoting Freeman v. State, 325 So. 3d 120, 121 (Fla. 5th DCA 2020))). Further, the trial court applied the wrong standard to determine whether Murphy had established he was rehabilitated and fit to re-enter society. In making its oral ruling, the trial court stated it was going to use "the rubric of . . . aggravating and mitigating factors in death penalty cases" and was going to "think about what's been shown, and then give [the statutory factors] the weight that I think is appropriate in weighing those factors to come up with a conclusion." While the statute specifies factors the trial court may consider, the ultimate determination for the trial court is whether a preponderance of the evidence offered touching 4 on those factors establishes rehabilitation and fitness to reenter society. § 921.1402(7). In other words, the statute calls for a conclusion based on the weight of the evidence—not a balancing test of factors for and against a particular outcome.2 This error was compounded when the trial court elected to rely heavily on its own personal experience—rather than evidence—about the risk of reoffending and the ability of an individual who has been incarcerated for a substantial portion of his life to adjust to life outside prison. See Tindall, 310 So. 3d at 102 (stating that the trial court erred in rejecting unrebutted expert testimony in favor of its own opinion). On appeal, in support of the trial court's order the State points to section 921.1402(6), which provides that the trial court "shall consider any factor it deems appropriate," in addition to those enumerated in the statute. But this argument ignores the context in which that provision appears. The statute requires an evidentiary hearing which necessarily means the rules of evidence apply. While the trial court may consider "any factor" it cannot rely on matters not in evidence. See Jackson v. State, 276 So. 3d 73, 75 (Fla. 1st DCA 2019) (stating that findings of fact in a trial court's sentencing order must be supported by competent substantial evidence). Further, "any factor" must be understood to mean any factor that is relevant to determining whether a juvenile offender is rehabilitated and fit to reenter society as opposed to factors that are relevant in a sentencing or resentencing proceeding. Here, the trial court relied 2 We want to make clear that we do not mean to criticize the trial court; at the time of Murphy's hearing, these were uncharted waters. The sentencing review process is a different creature than what a criminal trial court judge is typically faced with, and the trial court had little or no case law to guide it. 5 heavily on the facts of the offense for which Murphy was incarcerated effectively concluding that the nature of the offense acted as a veto over the evidence of rehabilitation and fitness to reenter society. While sections 921.1402(d) and (f) contemplate consideration of certain aspects of the offense for which the offender is imprisoned, it does so as a temporal beginning point to analyze whether maturity and rehabilitation have now been demonstrated. To allow the nature of the offense to override unrebutted proof of rehabilitation and fitness to reenter society—as the State argues it should—would render illusory the entire sentencing review process put in place by the legislature. The facts of the underlying offense, while crucial in determining an appropriate sentence at the time of conviction or resentencing, play a different role under the sentencing review process, the purpose of which is to focus on the present and the question of the offender's rehabilitation and suitability to reenter society. Here, the competent substantial evidence supported only one conclusion: Murphy was rehabilitated and was fit to reenter society. The statute mandates that under these circumstances, the court "shall modify the sentence and impose a term of probation of at least 5 years." § 921.1402(7). Accordingly, we reverse and remand for the trial court to enter an order modifying Murphy's sentence in accordance with the statute. See id. Reversed and remanded. CASANUEVA, KELLY, and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. 6