FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5248
_____________________________
TRAVIS D. MARSHALL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.
August 23, 2019
PER CURIAM.
Appellant, Travis D. Marshall, challenges his convictions and
sentences for burglary of a dwelling, grand theft, and petit theft,
offenses he committed at the age of twenty-one. We affirm as to
both issues Appellant raises on appeal and write only to address
his argument that the minimum mandatory fifteen-year prison
sentence he received on the burglary count as a prison releasee
reoffender (“PRR”) is unconstitutional pursuant to Miller v.
Alabama,
567 U.S. 460 (2012), and Graham v. Florida,
560 U.S.
48 (2010), for the reason that he qualified for it only because of
prior crimes he committed when he was a juvenile.
The constitutionality of a sentence is reviewed de novo. Nelms
v. State,
263 So. 3d 88, 90 (Fla. 4th DCA 2019); see also Andrews
v. State,
82 So. 3d 979, 984 (Fla. 1st DCA 2011) (explaining that
constitutional issues are reviewed de novo and “when considering
Eighth Amendment issues, appellate courts must yield
‘substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of
punishment for crimes, as well as to the discretion that trial courts
possess in sentencing convicted criminals’” (quoting Solem v.
Helm,
463 U.S. 277, 290 (1983)).
“Prison releasee reoffender” means a defendant who commits
or attempts to commit an enumerated offense, such as burglary,
within three years after being released from a correctional facility
following incarceration for an offense for which the sentence is
punishable by more than one year. § 775.082(9)(a), Fla. Stat.
(2017). If the State seeks PRR sentencing and proves that the
defendant is a PRR, the court must sentence the defendant to at
least fifteen years of imprisonment for a second-degree felony. Id.
A person sentenced as a PRR may be released only upon expiration
of the sentence, shall not be eligible for parole or any form of early
release, and must serve 100% of the court-imposed sentence. §
775.082(9)(b), Fla. Stat. As such, “[t]he PRR statute is a
mandatory minimum provision that creates a sentencing floor.”
Cotto v. State,
139 So. 3d 283, 286 (Fla. 2014).
In Graham, the Supreme Court held that the imposition of a
life without parole sentence on a juvenile offender who did not
commit a homicide constitutes cruel and unusual punishment. 560
U.S. at 74. Juvenile nonhomicide offenders’ limited culpability,
the severity of the sentence of life without parole, and the lack of
penological justification for the punishment for such offenders led
the Court to conclude that the sentencing practice was cruel and
unusual. Id. (explaining that a state need not guarantee a juvenile
nonhomicide offender’s eventual release, but it must afford some
realistic opportunity to obtain release before the end of the life
term based on demonstrated maturity and rehabilitation). The
Court drew the “clear line” at the age of eighteen for the purposes
of its holding. Id. at 74-75 (citing Roper v. Simmons,
543 U.S. 551
(2005), where the Supreme Court held that the Eighth and
Fourteenth Amendments prohibit the imposition of the death
penalty on juvenile offenders and recognized that “[t]he qualities
that distinguish juveniles from adults do not disappear when an
2
individual turns 18,” but concluded that the line must be drawn at
the age of 18 because that is “the point where society draws the
line for many purposes between childhood and adulthood”).
Subsequently, in Miller, the Supreme Court held that a
mandatory life without parole sentence for a juvenile offender
violates the Eighth Amendment’s prohibition on cruel and unusual
punishment because it prevents consideration of juveniles’
lessened culpability and greater capacity for change. 567 U.S. at
465, 479. The Court focused on the fact that “Roper and Graham
establish that children are constitutionally different from adults
for purposes of sentencing” and on the reasons why “juveniles have
diminished culpability and greater prospects for reform.” Id. at
471. The Court again defined juvenile offenders as those under
the age of eighteen at the time of their crimes. Id. at 465, 470-71,
473, 489.
In response to Graham and Miller, the Florida Legislature in
2014 enacted juvenile sentencing laws. The juvenile sentencing
laws are codified in sections 775.082, 921.1401, 921.1402, Florida
Statutes, and apply to defendants who are convicted of certain
offenses they committed when they were under the age of eighteen
and who are sentenced to a term of life imprisonment or its
equivalent.
Here, Appellant argues that his mandatory day-for-day PRR
sentence is unconstitutional pursuant to Graham and Miller and
he should be resentenced under the juvenile sentencing statutes.
We find Appellant’s argument to be without merit for a number of
reasons. First, Appellant was sentenced as a PRR for an offense
he committed as an adult; therefore, Graham, Miller, and the
juvenile sentencing statutes are inapplicable. Appellant tries to
avoid this conclusion by contending that while the mandatory
sentence was not imposed for an offense he committed as a
juvenile, it was imposed because of offenses he committed as a
juvenile. While that is true to the extent that he could not have
received the PRR sentence absent the prior offenses he committed
as a juvenile, it overlooks the fact that he is not challenging the
sentences for the offenses he committed as a juvenile and he could
not have received the PRR sentence had he not committed the new
offenses as an adult.
3
Indeed, Appellant’s argument ignores and defeats the purpose
of the PRR statute, which is to punish certain reoffenders to the
fullest extent and thereby deter recidivism. See § 775.082(9)(d)1.,
Fla. Stat. (“It is the intent of the Legislature that offenders
previously released from prison who meet the criteria in paragraph
(a) be punished to the fullest extent of the law . . . .”); State v.
Hearns,
961 So. 2d 211, 217 (Fla. 2007) (“The PRR statute . . . is
intended to deter recidivism by imposing longer sentences on
repeat offenders.”); Mobley v. State,
983 So. 2d 630, 632 (Fla. 5th
DCA 2008) (explaining that the legislative intent behind the PRR
statute is to punish certain reoffenders to the fullest extent of the
law).
Regardless, courts have consistently declined to extend the
holdings of Graham and Miller and the applicability of the juvenile
sentencing statutes to offenders eighteen years of age or older. See
Romero v. State,
105 So. 3d 550, 551-53 (Fla. 1st DCA 2012)
(rejecting the eighteen-year-old offender’s argument that his
sentence of life without parole for murder was unconstitutional
pursuant to Graham because of his youth and the attendant
factors; holding that for Graham to apply, the offender must have
been a juvenile at the time of the commission of the offense; and
noting that “[n]ot a single court in this country has extended
Graham to an adult offender. On the contrary, several courts have
reaffirmed that Graham is inapplicable to adult offenders.”); see
also McCray v. State,
247 So. 3d 721, 722 (Fla. 1st DCA 2018) (per
curiam affirming with a citation to Romero as holding that
Graham does not apply to a defendant eighteen years of age or
older); Wilson v. State,
249 So. 3d 800 (Fla. 1st DCA 2018) (same);
Jean-Michel v. State,
96 So. 3d 1043, 1045 (Fla. 4th DCA 2012)
(rejecting the appellant’s argument that his three consecutive life
sentences for nonhomicide crimes were unconstitutional pursuant
to Graham because he was nineteen years old at the time of the
offenses and emphasizing that in both Roper and Graham, the
Supreme Court expressly drew the line at the age of eighteen). As
we have stated, “[w]e apply Graham as written. We decline to take
the extreme act of extending Graham to adult offenders in the
absence of a clear and explicit directive from the Supreme Court.”
Romero, 105 So. 3d at 554.
4
Second, even if Graham and Miller could be extended to an
adult offender, they would be inapplicable because Appellant was
not sentenced to life imprisonment or its equivalent. See Romero,
105 So. 3d at 553 (explaining that for Graham to apply, the
offender must have been sentenced to life and the sentence must
not provide him with any possibility of release during his lifetime);
see also McCrae v. State,
267 So. 3d 470, 471 (Fla. 1st DCA 2019)
(finding that the appellant’s thirty-year prison sentence was not
inconsistent with Graham or Miller because “there was no life
sentence—de facto or otherwise. Indeed, McCrae will still be in his
forties when released.”); Hart v. State,
255 So. 3d 921, 927-28 (Fla.
1st DCA 2018) (finding that the appellant could not demonstrate
that his aggregate fifty-year prison sentence violated Graham
because “[he] was not sentenced to a life sentence or a de facto life
sentence. Consistent with the requirements of Graham, [his] fifty-
year sentence affords him a meaningful opportunity for release
during his natural life.”); Davis v. State,
214 So. 3d 799, 799 (Fla.
1st DCA 2017) (concluding that the appellant’s aggregate thirty-
five-year prison sentence did not violate Graham or Miller because
he “was not sentenced to a life, mandatory life, or a de facto life
sentence”). Appellant’s fifteen-year sentence is considerably
shorter than sentences we have found not to constitute life
sentences.
Lastly, Appellant contends that the juvenile sentencing laws
should be applied to his situation. However, those statutes do not
apply to the circumstances this case presents because there is not
an original sentence that violates Graham or Miller. See Hart, 255
So. 3d at 924-27 (“[T]he Florida Supreme Court very narrowly
defined the class of offenders entitled to resentencing under the
new juvenile resentencing laws; specifically, those defendants who
originally received life sentences and who were resentenced after
their sentences were vacated pursuant to Graham but before the
July 1, 2014 effective date of the new juvenile sentencing laws.” );
see also McCrae, 267 So. 3d at 471-72 (explaining that “[w]ithout
an unconstitutional sentence to start with, McCrae is not entitled
to resentencing under the new statute” and “[u]nless and until the
Florida Supreme Court announces that every juvenile defendant
is entitled to a sentence under the new laws—regardless of when
the defendant was sentenced or whether the original sentence
violated Graham or Miller—we will follow the rule that
5
resentencing only applies when there was a Graham or Miller
violation”).
For the foregoing reasons, we conclude that Appellant’s PRR
sentence does not violate Graham, Miller, or the Eighth
Amendment’s prohibition against cruel and unusual punishment.
Accordingly, we affirm Appellant’s convictions and sentences.
AFFIRMED.
LEWIS, OSTERHAUS, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.
6
