DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD COLSON WHITE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-3560
[December 4, 2019]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Okeechobee County; Michael Heisey,
Judge; L.T. Case No. 471985CF000256B.
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant Richard Colson White appeals an order denying his motion
to vacate sentence based on Miller v. Alabama,
567 U.S. 460,
132 S. Ct.
2455,
183 L. Ed. 2d 407 (2012), and Graham v. Florida,
560 U.S. 48,
130
S. Ct. 2011,
176 L. Ed. 2d 825 (2010). We reverse and remand upon
accepting the State’s concession that the issue is controlled by our
decision in Jones v. State,
279 So. 3d 172 (Fla. 4th DCA 2019).
In Jones, the defendant moved for resentencing based on Miller and
Graham.
Jones, 279 So. 3d at 173. The trial court granted the motion
and ordered resentencing. Significantly, the State did not seek rehearing
or appeal. Before resentencing occurred, and after a change in the law,
the State changed its position and objected to Jones’ resentencing. See
Franklin v. State,
258 So. 3d 1239 (Fla. 2018); State v. Michel,
257 So. 3d
3 (Fla. 2018), cert. denied, ––– U.S. ––––,
139 S. Ct. 1401,
203 L. Ed. 2d
630 (2019). The circuit court agreed with the State and vacated the order
granting resentencing.
Jones, 279 So. 3d at 173.
We reversed that order in Jones because the circuit court lacked
jurisdiction to reconsider the earlier order granting resentencing.
Id. at
174 (citing Simmons v. State,
274 So. 3d 468 (Fla. 1st DCA 2019) (holding
that the trial court lacked jurisdiction to rescind an order granting
resentencing once it became a final, appealable order, and neither party
timely moved for rehearing of the order under Fla. R. Crim. P.
3.800(b)(1)(B)).
As in Jones, we reverse the order on appeal and remand with directions
that the trial court reinstate the order granting Appellant’s rule 3.800(a)
motion. The trial court should then resentence Appellant to a lawful
sentence. Also, as in our opinion in Jones, we decline to address the
substantive challenges Appellant raises concerning the current sentencing
law.
Reversed and remanded with instructions.
GROSS, FORST and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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