FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-5224
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STATE OF FLORIDA,
Appellant,
v.
SHELTON JACKSON,
Appellee.
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On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.
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No. 1D18-5246
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STATE OF FLORIDA,
Appellant,
v.
JACKIE LEE COGDELL,
Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.
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No. 1D18-5247
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STATE OF FLORIDA,
Appellant,
v.
CARNELL ERNEST GRAYER,
Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.
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No. 1D19-0111
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STATE OF FLORIDA,
Appellant,
v.
KENNETH LOWE,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
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No. 1D19-0122
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STATE OF FLORIDA,
Appellant,
v.
ALEXANDER JONES,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
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No. 1D19-0124
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STATE OF FLORIDA,
Appellant,
v.
DARNELL SMITH,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
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July 22, 2019
PER CURIAM.
Appellees in these cases, which we consolidate for disposition,
were each sentenced to life in prison for offenses committed as
juveniles and were all later granted resentencing pursuant to
Atwell v. State,
197 So. 3d 1040 (Fla. 2016) (holding that a juvenile
life sentence with the possibility of parole violates the Eighth
Amendment as it is effectively a life sentence without parole under
Florida’s statutory parole process). The State did not appeal the
orders granting resentencing. Prior to any of the Appellees being
resentenced, the Florida Supreme Court issued an opinion in State
v. Michel,
257 So. 3d 3 (Fla. 2018), which implicitly overruled
Atwell, finding that a juvenile offender’s life sentence with the
possibility of parole after 25 years does not violate the Eighth
Amendment because the juvenile has a meaningful opportunity to
receive parole. The Florida Supreme Court later held similarly in
Franklin v. State,
258 So. 3d 1239 (Fla. 2018).
After the mandate issued in Michel but before Franklin
became final, the State filed in each case a motion to rescind the
order that granted resentencing. The State argued that the
change in the law effected by Michel warranted this relief.
Alternatively, the State sought to stay resentencing until the
opinion in Franklin became final. In each case, the circuit court
denied the State’s motion, finding that it lacked jurisdiction to
rescind the order granting resentencing. The State then appealed.
Appellees now file motions to dismiss arguing that this Court lacks
jurisdiction to review the orders denying the State’s motions to
rescind. We agree that the orders are not appealable. The State’s
right to appeal in a criminal case is wholly dependent on statutory
authorization, and this Court must construe the statute narrowly.
Exposito v. State,
891 So. 2d 525, 527-28 (Fla. 2004). The plain
language of sections 924.066 and 924.07, Florida Statutes (2018),
does not authorize these appeals.
The State argues that the orders denying the motions to
rescind are appealable as orders granting postconviction relief.
See § 924.066(2), Fla. Stat. (2018); Fla. R. App. P. 9.140(c)(1)(J).
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However, the postconviction relief in these cases had already been
granted in the orders granting resentencing. As the circuit court
has noted in the orders now appealed, the time for the State to seek
review of the orders granting resentencing was within 30 days
after those orders were rendered. The orders granting
resentencing are now final. Simmons v. State,
2019 WL 2128216,
*2 (Fla. 1st DCA 2019); Jordan v. State,
81 So. 3d 595, 596 (Fla.
1st DCA 2012). Rather than granting postconviction relief, the
orders denying the State’s motions to rescind merely found that
the circuit court lacked jurisdiction to reconsider the orders
granting resentencing.
The State also argues that the orders denying its motions to
rescind are appealable as orders imposing an illegal sentence. See
§ 924.07(1)(e), Fla. Stat. (2018); Fla. R. App. P. 9.140(c)(1)(M). We
reject this argument as resentencing has not yet taken place. Once
the Appellees are resentenced, the State may appeal any sentence
that it believes to be illegal.
Accordingly, these appeals are DISMISSED.
LEWIS, ROBERTS, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Ashley Moody, Attorney General, Tabitha R. Herrera and Kaitlin
Weiss, Assistant Attorneys General, Tallahassee, for Appellant.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb,
Assistant Public Defender, Jacksonville, for Appellees.
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