DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMES A. MORGAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1866
[December 9, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Mirman, Judge; L.T. Case No.
77000326CFAXMX.
Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, and James
Morgan, Raiford, pro se, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges his life sentence imposed pursuant to section
921.1401, Florida Statutes. He claims that the statute should not apply
to him, because the crime occurred in 1977. Because appellant requested
sentencing pursuant to the statute, we affirm.
In 1977, appellant was convicted and sentenced to death for first-
degree murder. After the multiple appeals, reversals, retrials, and
appeals, 1 the Florida Supreme Court affirmed his conviction in 1994 but
1 See Morgan v. State,
392 So. 2d 1315 (Fla. 1981) (Morgan I) (conviction and
sentence of death reversed because bifurcated insanity procedure used in
Morgan’s trial was subsequently held to be unconstitutional); Morgan v. State,
453 So. 2d 394 (Fla. 1984) (Morgan II) (conviction and sentence reversed because
trial court erred in refusing to permit Morgan to raise the insanity defense);
Morgan v. State,
537 So. 2d 973 (Fla. 1989) (Morgan III) (conviction and sentence
reversed because trial court erroneously excluded medical expert opinion
testimony that was based on information obtained from Morgan by hypnosis).
reduced his sentence to life in prison with the possibility of parole after
twenty-five years. Morgan v. State,
639 So. 2d 6, 14 (Fla. 1994).
Because appellant was a juvenile when he committed the murder,
appellant sought re-sentencing after the Supreme Court decided Miller v.
Alabama,
567 U.S. 460 (2012), which held that a sentencing scheme
mandating life in prison without the possibility of parole for juvenile
homicide offenders violated the Eighth Amendment. At the time of his
motion, the Florida Supreme Court had extended Miller to juvenile life
sentences even with the possibility of parole in Atwell v. State,
197 So. 3d
1040 (Fla. 2016). 2 Appellant requested sentencing pursuant to sections
921.1401 and 921.1402, Florida Statutes. He also filed an affidavit in
which he confirmed his request to be sentenced pursuant to these newly
enacted statutes. In that motion, he acknowledged that Florida no longer
had a parole system other than the one which was currently available
under his present sentence. He conceded that “if the court resentences
me pursuant to section 921.1401, that this can and may affect my current
parole status in the Department of Corrections.” Further, he recognized
“that it may forever preclude me for seeking parole at any time in the
future.” Resentencing at this time could affect his current status and
make him “ineligible for parole altogether,” which “could result in my
serving a life sentence without the possibility of any form of release in the
future.”
The trial court held a resentencing hearing over several days. During
the hearing, the court also questioned appellant about his understanding
of what he may be giving up by seeking resentencing under the new
statute. The appellant acknowledged that he understood.
The court resentenced appellant to life in prison with the required
judicial review pursuant to section 921.1402, Florida Statutes.
On appeal, appellant claims that the court erred in sentencing him
pursuant to section 921.1401, because the statute does not apply to his
crime committed in 1977, and it would violate the ex post facto clause of
the Florida and Federal Constitutions. This issue is without merit,
because appellant affirmatively requested sentencing pursuant to its
2 Atwell was later abrogated in State v. Michel,
257 So. 3d 3 (Fla. 2018), which
held that the juvenile defendant’s life sentence with the possibility of parole after
twenty-five years, imposed upon his conviction of first-degree premeditated
murder, was not the equivalent of life without possibility of parole and, thus, was
not cruel and unusual punishment under Eighth Amendment. Therefore, such
a sentence did not violate Miller, and resentencing in such cases was not required.
2
terms and made a knowing and voluntary relinquishment of his right to
be sentenced under the 1977 sentencing law. Such a knowing rejection of
his right to be sentenced under the prior law constitutes a waiver of his ex
post facto rights. See Bowles v. Singletary,
698 So. 2d 1201, 1204 (Fla.
1997) (acceptance of Control Release terms constitutes waiver of ex post
facto application of control release program to inmate’s sentence). As
noted in Bowles, in connection with new sentencing programs, “affirmative
election to accept a newly created program waives any potential ex post
facto argument the petitioner may have had.”
Id.
Moreover, his sentence without parole eligibility only “possibly”
disadvantaged him, a criteria for ex post facto application. In May v.
Florida Parole and Probation Commission,
435 So. 2d 834 (Fla. 1983), the
court considered the ex post facto application of stricter criteria for setting
a presumptive parole date than existed at the time of the defendant’s
original crime. The court noted:
Florida law at the time of May’s offense provided him with only
eligibility for parole consideration (assuming good behavior
during confinement). It is true that the commission has
developed and implemented, as required by law, objective
parole guidelines as the criteria upon which parole decisions
are made. Nevertheless, chapter 947, Florida Statutes, taken
as a whole, leaves the ultimate parole decision to the
discretion, albeit guided by its own administrative rules, of the
commission.
Id. at 837 (footnotes omitted). Therefore, the court did not find that the
defendant was disadvantaged for purposes of ex post facto application.
Id.
at 838.
Similarly, in this case, parole was only a possibility—not an
entitlement. Therefore, based upon the May analysis, there was no
disadvantage created by application of the new sentencing scheme,
because appellant was never entitled to release through parole.
Relying on Apprendi v. New Jersey,
530 U.S. 466 (2000), appellant also
contends that the sentencing factors under section 921.1401 must be
made by a jury and not the court. We have already decided this issue and
have held that section 921.1401 does not violate Apprendi, because the
statute does not alter the statutory maximum nor does the court sentence
outside of the sentencing range prescribed by the statute when considering
the statutory factors. See White v. State,
271 So. 3d 1023, 1027–28 (Fla.
4th DCA 2019); accord Simmons v. State,
267 So. 3d 1067, 1069–70 (Fla.
3
1st DCA 2019); Beckman v. State,
230 So. 3d 77, 94–97 (Fla. 3d DCA
2017).
Finally, appellant argues that the prosecutor engaged in misconduct in
several of his remarks during sentencing. We do find that the prosecutor
was immoderate in his criticism of the Supreme Court in Miller and
Graham, as well as his comments as to various appellate rulings. This was
clearly a result of a lot of frustration that appellant’s case had been
relitigated so many times over the last forty-plus years. Despite these
remarks, there is no error. This was a sentencing proceeding before a
judge, not a jury. Judges are well able to disregard such remarks and
adhere to the requirements of law. See Harvard v. State,
414 So. 2d 1032,
1034 (Fla. 1982); Alford v. State,
355 So. 2d 108, 109 (Fla. 1977).
For the foregoing reasons, we affirm the trial court’s sentencing order.
Affirmed.
LEVINE, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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