William Davis v. State of Florida ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM DAVIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D11-2993 and 4D11-2994
[December 16, 2015]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case
Nos. 96-23307CF10A and 96-21254CF10A.
Carey Haughwout, Public Defender, and John Pauly, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.
MAY, J.
We sua sponte withdraw our previously issued opinion and substitute
this opinion in its place.
In this consolidated appeal of two criminal cases, the defendant
challenges an order revoking his probation and imposing two consecutive
forty-year sentences. In Case No. 96-21254CF10A, the defendant was
convicted of two counts of sexual battery by a person under 18 on a child
under 12, and one count of indecent assault of a person less than 16 years
of age. In Case No. 96-23307CF10A, the defendant was convicted of one
count of sexual battery by a person under 18 on a child under 12.
Following these convictions in 1997, the trial court sentenced the
defendant to a term of ten years in prison to be followed by ten years’
probation.
In 2009, less than three years after his release from prison, the State
filed affidavits of violation of probation (“VOP”). The trial court modified
the defendant’s probation to include electronic monitoring and a 10:00
p.m. curfew. Throughout 2009, several other affidavits of VOP were filed,
but the defendant’s probation was reinstated with special conditions
added.
In 2011, the State filed the affidavits of VOP at issue. After the
defendant was arrested, the State filed a Second Amended Affidavit of VOP,
alleging that the defendant violated eleven conditions of his probation.
After a VOP hearing, the trial court concluded the defendant violated five
conditions of his probation: (1) leaving the county without the consent of
his probation officer; (2) failing to live and remain at liberty without
violating any law by committing sexual battery against a child less than
12 years old; (3) falsely reporting to his probation officer that he had not
used illegal drugs; (4) failing to actively participate in and successfully
complete a sex offender treatment program at his own expense; and (5)
failing to participate at least annually in polygraph examinations as a part
of a treatment program.
The trial court revoked the defendant’s probation and sentenced him to
two concurrent life sentences for two counts of sexual battery by a person
under 18 on a child under 12, to run concurrent with a fifteen-year prison
sentence for indecent assault of a person under 16 years of age; and life
in prison for sexual battery by a person under 18 on a child under 12. The
sentences were to run consecutively.
The defendant filed a Motion to Correct Illegal Sentences under Florida
Rule of Criminal Procedure 3.800(b)(2), arguing that the life sentences
imposed for non-homicide crimes committed as a juvenile violated the
prohibition on cruel and unusual punishment as found in the Eighth
Amendment to the United States Constitution. The trial court granted the
defendant’s motion, and re-sentenced him to two concurrent forty-year
sentences for two counts of sexual battery by a person under 18 on a child
under 12, to run concurrent with a fifteen-year prison sentence for
indecent assault of a person under 16 years of age; and forty years in
prison for sexual battery by a person under 18 on a child under 12. The
sentences were to run consecutively. The aggregate sentence is eighty
years in prison. The defendant appealed.
He raised three issues: (1) the trial court erred in finding the defendant
willfully violated his probation; (2) the court erred in finding the defendant
willfully violated conditions four and five; and (3) the eighty-year sentence
is cruel and unusual because it is a de facto life sentence. We find no
merit in the first two issues, but must remand the case to the trial court
for resentencing in light of the Supreme Court of Florida’s decision in
Henry v. State, 175 So. 3d 675 (Fla. 2015). In Henry, the supreme court
held “that the constitutional prohibition against cruel and unusual
punishment under Graham is implicated when a juvenile nonhomicide
offender’s sentence does not afford any ‘meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’” Id. at 679
(quoting Graham v. Florida, 560 U.S. 48, 75 (2010)).
Here, the defendant was a juvenile when the offenses were committed.
His eighty-year sentence runs afoul of Henry. We therefore reverse and
remand for another re-sentencing.
Reversed and Remanded.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.