WILLIE PERRY v. STATE OF FLORIDA , 263 So. 3d 86 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIE PERRY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-460
[January 9, 2019]
Appeal of order denying 3.800 motion from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Ernest A. Kollra, Jr.,
Judge; L.T. Case No. 062001CF013374A88810.
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Brooke Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.
KUNTZ, J.
Willie Perry appeals a circuit court order denying his Florida Rule of
Criminal Procedure 3.800(a) motion to correct illegal sentence. In his
motion, Perry argued his 65-year prison sentences for armed kidnapping,
carjacking with a firearm, and sexual battery on a victim 12 years or older
were de facto life sentences and illegal under recent case law and sections
775.082(3)(c) and 921.1402(2)(d), Florida Statutes (2014). Bound by
Kelsey v. State, 206 So. 3d 5 (Fla. 2016), we reverse and remand for
resentencing.
In 2013, the circuit court ordered a third sentencing hearing pursuant
to Graham v. Florida, 560 U.S. 48 (2010). 1 After a non-evidentiary hearing,
1We issued written opinions regarding Perry’s conviction on two prior occasions.
See Perry v. State, 973 So. 2d 1289, 1290 (Fla. 4th DCA 2008) (“We therefore
affirm Perry’s convictions but reverse for re-sentencing as to the consecutive ten-
year mandatory minimum sentences for armed kidnapping and carjacking with
the court resentenced Perry to concurrent terms of 65 years in prison with
a 10-year mandatory minimum for armed kidnapping and carjacking with
a firearm, and a concurrent term of 65 years in prison for sexual battery.
Perry filed a rule 3.800(a) motion, arguing that his sentences were de
facto life sentences and that he was entitled to resentencing under chapter
2014–220, Laws of Florida, which has been codified at sections 775.082,
921.1401, and 921.1402, Florida Statutes.
On appeal, Perry argues case law following his resentencing shows he
is entitled to relief. See, e.g., Kelsey, 206 So. 3d at 5. In Kelsey, the
defendant was a juvenile when he committed armed sexual battery, armed
burglary, and armed robbery. Id. at 6-7. Kelsey’s original life sentence
was declared unconstitutional under Graham, and the circuit court
resentenced him, before July 1, 2014, to concurrent sentences of 45 years
in prison. Id. at 7. After the legislature enacted chapter 2014–220, Kelsey
moved for resentencing. Id. at 8. In resolving the case, our supreme court
rephrased the certified question:
Is a defendant whose original sentence violated Graham v.
Florida, 560 U.S. 48 [ ] (2010), and who was subsequently
resentenced prior to July 1, 2014, entitled to be resentenced
pursuant to the provisions of chapter 2014–220, Laws of
Florida?
Id. at 6. The court answered the question in the affirmative. Id.; see also
id. at 8 (“[A]ll juveniles who have sentences that violate Graham are entitled
to resentencing pursuant to chapter 2014-220, Laws of Florida, codified
in sections 775.082, 921.1401 and 921.1402, Florida Statutes (2014).”).
While the court has clarified its post-Graham jurisprudence, see, e.g.,
Franklin v. State, 43 Fla. L. Weekly S556 (Fla. Nov. 8, 2018); State v. Michel,
43 Fla. L. Weekly S298 (Fla. July 12, 2018), it has not receded from the
holding in Kelsey.
The question answered in Kelsey controls our disposition here. The
circuit court concluded that Perry’s sentence violated Graham. 2 As a
result, Perry was resentenced. But he was resentenced before July 1,
a firearm.”); Perry v. State, 900 So. 2d 755, 757 (Fla. 4th DCA 2005) (“We direct
the trial court to permit Perry to withdraw his plea.”).
2 The earlier decision that Perry’s sentence violated Graham is not the subject of
this appeal. We affirmed the court’s order determining Perry’s sentence violated
Graham. Perry v. State, 187 So. 3d 1258 (Fla. 4th DCA 2016).
2
2014. Thus, under the Florida Supreme Court’s holding in Kelsey, Perry
has a right to be resentenced pursuant to the provisions of chapter 2014-
220, codified at sections 775.082 and 921.1402, Florida Statutes (2014).
Reversed and remanded for resentencing.
GERBER, C.J., and FORST, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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