Kenneth Wright v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KENNETH WRIGHT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-2337
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed August 10, 2017.
An appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.
Kenneth Wright, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the denial of his motion for postconviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial
of grounds one through three of the appellant’s motion. However, we reverse and
remand the denial of ground four for the trial court to give the appellant an
opportunity to plead a facially sufficient claim.
According to the appellant’s allegations, he was convicted of robbery in
1974, for a crime that he committed as a juvenile, and was sentenced to life in
prison. In ground four of his motion, the appellant alleged that his life sentence for
robbery violates the Supreme Court’s holding in Miller v. Alabama, 132 S. Ct.
2455 (2012), which forbids mandatory life without parole sentences for juvenile
offenders who commit homicide. However, Miller does not apply because the
appellant was not sentenced to a mandatory term of life in prison for a homicide
offense. The appellant is really challenging his sentence under Graham v. Florida,
560 U.S. 48 (2010), which held that the constitutional prohibition on cruel and
unusual punishments prevents a juvenile offender from being sentenced to life in
prison for a nonhomicide offense without having a meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation. Here, the
appellant has failed to allege that he has never been released on parole and that he
has no meaningful opportunity for release within his lifetime based upon
demonstrated maturity and rehabilitation. See Currie v. State, 42 Fla. L. Weekly
D1238a (Fla. 1st DCA May 31, 2017) (holding that a defendant sentenced to life in
prison for a sexual battery committed when he was a juvenile was not entitled to
relief pursuant to Graham where he was released on parole when he was 25 years
old and was then reincarcerated, and where the Commission on Offender Review
has assigned him a presumptive parole release date, as the defendant was afforded
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a meaningful opportunity to obtain release); Rooks v. State, 42 Fla. L. Weekly
D1573a (Fla. 3d DCA July 12, 2017) (holding that a defendant who was released
on parole and violated the parole is not entitled to resentencing under Florida’s
newly-enacted juvenile sentencing law). We reverse and remand for the lower
court to give the appellant an opportunity to allege that he has never been released
and has no meaningful opportunity to obtain release within his lifetime based on
demonstrated maturity, if he can do so in good faith.
AFFIRMED in part, REVERSED in part, and REMANDED in part with
directions.
WOLF, RAY, and MAKAR, JJ, CONCUR.
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