LARRY ROGERS v. STATE OF FLORIDA , 2017 Fla. App. LEXIS 9648 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LARRY ROGERS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-3686
[July 5, 2017]
Appeal of order denying rule 3.800(a) motion from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Michael A.
Robinson, Judge; L.T. Case No. 70023823CF10A.
Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Larry Rogers timely appeals the trial court’s order denying his rule
3.800(a) motion, where he alleged that his sentence is unconstitutional
under Graham v. Florida, 560 U.S. 48 (2010). We affirm, because Rogers
has not shown a violation of the Eighth Amendment under Graham.
In 1972, Rogers was convicted of robbery, an offense he committed at
the age of seventeen. He was sentenced to life in prison with the
possibility of parole. After spending seven years in prison, Rogers was
released on parole. Rogers was reincarcerated in 1979 when he violated
his parole by committing robbery with a deadly weapon at the age of
twenty-eight. He was released on parole again in 1990, but was
reincarcerated again after violating his parole by committing grand theft
in 1999.
Rogers claims that he is serving a de facto life without parole sentence
for a nonhomicide crime committed as a juvenile in violation of the
Eighth Amendment as interpreted by Graham and Henry v. State, 175
So. 3d 675 (Fla. 2015). He requests resentencing pursuant to chapter
2014-220, Laws of Florida, which is the proper remedy for a Graham
violation. Henry, 175 So. 3d at 680.
Because Rogers was released on parole, he cannot show a violation of
the Eighth Amendment under Graham, which held that:
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. . . . It bears
emphasis, however, that while the Eighth Amendment
prohibits a State from imposing a life without parole
sentence on a juvenile nonhomicide offender, it does not
require the State to release that offender during his natural
life.
Graham, 560 U.S. at 75. (emphasis added).
A juvenile offender who has actually been released from a prison
sentence has received more than what Graham requires. Rogers had an
opportunity for release and was in fact released from prison twice on
parole. He has not shown that his sentence violates the Eighth
Amendment under Graham, and he is not entitled to resentencing. 1 See
Currie v. State, No. 1D16-5578, 2017 WL 2350119, at *1 (Fla. 1st DCA
May 31, 2017) (reaching a similar conclusion for different reasons).
Affirmed.
WARNER, GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We decline to reach Rogers’ argument that his discretionary sentence of life
with the possibility of parole is unconstitutional under the holding of Landrum
v. State, 192 So. 3d 459 (Fla. 2016). This issue was not raised in the motion
filed below and is not properly raised for the first time in this appeal.
2