Milagro Cunningham v. State of Florida , 2016 Fla. App. LEXIS 4538 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MILAGRO CUNNINGHAM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-4364
[March 23, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles Burton, Judge; L.T. Case No. 2005CF006814A02.
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Milagro Cunningham appeals his seventy-year sentence for crimes he
committed as a juvenile. We reverse based upon Henry v. State, 175 So.
3d 675 (Fla. 2015), and Gridine v. State, 175 So. 3d 672 (Fla. 2015).
Cunningham was convicted of attempted second degree murder (count
I), kidnapping a child under thirteen (count II), three counts of sexual
battery on a child under twelve (counts III, IV, and V), and aggravated child
abuse (count VI), for acts committed when he was seventeen years old.
The court sentenced him to fifteen years on count I, life sentences on
counts II through V, and thirty years on count VI.
On appeal, we affirmed his attempted second-degree murder conviction
under count I on the authority of Williams v. State, 40 So. 3d 72 (Fla. 4th
DCA 2010), which was then pending before the Florida Supreme Court.
Cunningham v. State, 74 So. 3d 568, 569 (Fla. 4th DCA 2011). As to his
life sentences on counts II through V, we reversed based upon Graham v.
Florida, 560 U.S. 48, 82 (2010), which holds that the Constitution
prohibits the imposition of life sentences without parole for juvenile
offenders convicted of non-homicide offenses. Cunningham, 74 So. 3d at
570.
The Florida Supreme Court subsequently quashed this Court’s decision
affirming Cunningham’s conviction on count I and remanded for
reconsideration based on its decision in Williams v. State, 123 So. 3d 23(Fla. 2013). Cunningham v. State, 134 So. 3d 446 (Fla. 2014). On remand,
we reversed the conviction on count I and remanded for a new trial on that
count, noting that we had previously ordered resentencing on counts II
through V. Cunningham v. State, 162 So. 3d 1 (Fla. 4th DCA 2014).
On remand, Cunningham entered a plea on count I and the trial court
sentenced him to 30.175 years on that count. It reduced the life sentences
on counts II through V to concurrent forty-year sentences. On count VI,
the court ordered the thirty-year sentence to be served consecutively to
the other counts, for a total sentence of 70.175 years in prison. Defense
counsel objected that the seventy-year sentence was a de facto life
sentence in violation of Graham, 560 U.S. at 82. Cunningham now
appeals this sentence.
In Henry v. State, 175 So. 3d 675, 679-80 (Fla. 2015), our supreme
court held that a juvenile non-homicide offender’s aggregate sentence,
which totaled ninety years, was unconstitutional under Graham. 560 U.S.
at 82. And in Gridine v. State, 175 So. 3d 672, 674-75 (Fla. 2015), the
court found that a seventy-year sentence for non-homicide offenses by a
juvenile offender was also unconstitutional because it did not provide the
defendant with a meaningful opportunity for early release based upon
maturity and rehabilitation. In light of Henry and Gridine, both of which
were decided after the trial court’s resentencing in the present case,
Cunningham’s aggregate sentence of seventy years for non-homicide
offenses committed as a juvenile is unconstitutional.
We reverse for resentencing in accordance with Henry, 175 So. 3d at
680, and Horsley v. State, 160 So. 3d 393, 395-96 (Fla. 2015).
CIKLIN, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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