Floyd W. Peterson v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
FLOYD W. PETERSON,
Appellant,
v. Case No. 5D15-3799
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed June 10, 2016
3.800 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.
Robert Wesley, Public Defender, and
Carolyn Schlemmer, Assistant Public
Defender, Orlando, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Bonnie Jean Parrish,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
Floyd Peterson was convicted in 2003 of burglary of a dwelling with an assault or
battery, a first-degree felony, punishable by a term of years not exceeding life in prison,
and was sentenced to serve fifty-six years in prison.1 Peterson was seventeen years old
1 Peterson was also convicted of two other crimes which are not pertinent to this
appeal.
at the time he committed this crime and was eighteen years old when he was sentenced.2
His direct appeal was affirmed without opinion. Peterson v. State, 892 So. 2d 1056 (Fla.
5th DCA 2005).
Presently pending before this court is Peterson’s appeal of the postconviction
court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct his
sentence. Peterson essentially argues that the fifty-six-year sentence for his nonhomicide
crime equates to a de facto life sentence in violation of the Eighth Amendment of the
United States Constitution’s prohibition against cruel and unusual punishment. 3
In Graham v. Florida, 560 U.S. 48, 74 (2010), the United States Supreme Court
held that the Eighth Amendment forbids a sentence of life without parole for a juvenile
offender who did not commit a homicide. The Court wrote:
A State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime. What the
State must do, however, is give [juvenile offenders] some
meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. . . . It bears
emphasis, however, that while the Eighth Amendment
prohibits a State from imposing a life without parole sentence
on a juvenile nonhomicide offender, it does not require the
State to release that offender during his natural life. . . . The
Eighth Amendment does not foreclose the possibility that
persons convicted of nonhomicide crimes committed before
adulthood will remain behind bars for life. It does prohibit
States from making the judgment at the outset that those
offenders never will be fit to reenter society.
2Peterson committed the crime twenty days before he turned eighteen. He was
sentenced four days before he turned nineteen.
3 The Eighth Amendment’s cruel and unusual punishment clause is made
applicable to the states by the due process clause of the Fourteenth Amendment.
Robinson v. California, 370 U.S. 660, 675 (1962) (Douglas, J., concurring).
2
560 U.S. at 75. Two years later, in Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court
held that a mandatory life sentence without the possibility of parole for juvenile offenders
who commit homicides violates the Eighth Amendment.
Subsequent to Graham, appellate courts in Florida confronted the question of
whether a lengthy term-of-years sentence imposed upon juvenile nonhomicide offenders
also violated Graham and the Eighth Amendment because these sentences, though not
actual life sentences, amounted to de facto life sentences.4 Three of the five district courts
of appeal found that Graham did not apply to lengthy term-of-years sentences. See, e.g.,
Young v. State, 110 So. 3d 931, 932–33 (Fla. 2d DCA 2013); Guzman v. State, 110 So.
3d 480, 483 (Fla. 4th DCA 2013); Henry v. State, 82 So. 3d 1084, 1089 (Fla. 5th DCA
2012). The First District Court of Appeal applied Graham on a case-by-case basis when
addressing lengthy sentences of juvenile nonhomicide offenders. See Floyd v. State, 87
So. 3d 45, 45–46 (Fla. 1st DCA 2012) (reversing consecutive forty-year sentences
because there was no meaningful opportunity for release required under Graham);
Adams v. State, 188 So. 3d 849, 851–52 (Fla. 1st DCA 2012) (reversing a sentence that
required a juvenile nonhomicide offender to serve at least fifty-eight and one-half years
because the sentence exceeded the offender’s life expectancy). The Florida Supreme
Court accepted jurisdiction in Henry to address whether the holding in Graham applied to
lengthy term-of-years sentences. Henry v. State, 107 So. 3d 405 (Fla. 2012).
4 A de facto life sentence is defined as “one that exceeds the defendant’s life
expectancy.” Adams v. State, 188 So. 3d 849, 851 (Fla. 1st DCA 2012), review denied,
State v. Adams, No. SC12-1795, 2016 WL 234892 (Fla. Jan. 20, 2016).
3
question regarding the point at which a term-of-years sentence becomes a de facto life
sentence).7
However, in Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), the First District
Court of Appeal affirmed, after resentencing, a juvenile offender’s thirty-year sentence for
armed robbery and concurrent forty-year sentence for first-degree murder. The Florida
Supreme Court quashed this decision and remanded for sentencing in conformance with
the 2014 juvenile sentencing statutes. Thomas v. State, 177 So. 3d 1275 (Fla. 2015).
Though Thomas involved a juvenile who committed a homicide, thereby implicating Miller
and not Graham, as noted by Judge Benton in his dissenting opinion in Kelsey, if the
constitutionality of a juvenile nonhomicide offender’s sentence is based solely on whether
the juvenile received a de facto life sentence, then, pursuant to Thomas, a juvenile
homicide offender whose forty-year sentence is invalid, and therefore entitled to
resentencing under the new juvenile sentencing law, is actually treated more favorably
than a juvenile nonhomicide offender, such as Mr. Kelsey, whose forty-five-year sentence
was affirmed as constitutional. See Kelsey, 183 So. 3d at 447 n.6 (Benton, J., dissenting).
As evidenced by the foregoing, after Henry and Gridine, the intermediate appellate
courts have attempted to narrow the line of demarcation for when a juvenile nonhomicide
offender’s sentence becomes a de facto life sentence and, therefore, unconstitutional.
7 In her concurring opinion, Justice Pariente explained that discharge was
appropriate because, though Guzman committed his offenses while a juvenile, he was
initially placed on probation. Guzman, 183 So. 3d at 1026 (Pariente J., concurring).
Guzman thereafter violated his probation after he turned eighteen, prompting the trial
court to revoke and terminate his probation and sentence him to sixty years in prison. Id.
Justice Pariente made clear that the only reason that Guzman’s sixty-year sentence
would not be otherwise unconstitutional under Graham was because Guzman violated
his probation and received his sixty-year sentence after he became an adult. Id. at 1027.
7
Finally, we recognize that Peterson’s judgment and sentence was final long before
the United States Supreme Court issued Graham. Recently, that Court determined that
its decision in Miller, which held that life sentences for juveniles convicted of homicide
was unconstitutional, was entitled to retroactive effect. Montgomery v. Louisiana, 136 S.
Ct. 718 (2016). The Florida Supreme Court has also held that Miller is to be applied
retroactively. Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015). We agree with our sister
courts that there is no material difference between Graham and Miller in terms of the
analysis required for retroactivity, Williams, 41 Fla. L. Weekly D508; St. Val v. State, 107
So. 3d 553, 554 (Fla. 4th DCA 2013), and expressly join these courts in concluding that
Graham is to be applied retroactively.9 Therefore, we hold that Peterson’s initial fifty-six-
year sentence was prohibited under the Eighth Amendment and direct that Peterson be
resentenced in light of the new juvenile sentencing legislation now codified at sections
775.082, 921.1401, and 921.1402, Florida Statutes.10 See Horsley, 160 So. 3d at 395.
then a fifty-six-year sentence is not a de facto life sentence. Moreover, as we raised in
Henry, it is unclear whether gain time would be a factor in this analysis. Id. If it is, and,
pursuant to section 921.002(1)(e), Florida Statutes (2002), Peterson serves only eighty-
five percent of his sentence, then his sentence is not a de facto life sentence, but then
the sixty-year sentence in Guzman, that Justice Pariente clearly inferred would be an
unconstitutional sentence, would arguably not be a de facto life sentence if Guzman’s
nine years of gain time is considered.
9 In Weiand v. State, 129 So. 3d 434, 434–35 (Fla. 5th DCA 2013), we reversed
life sentences imposed on a juvenile nonhomicide offender in 1988 and remanded for
resentencing, impliedly concluding that Graham applied retroactively.
10 To be clear, we are not holding or suggesting that a fifty-six-year sentence is
unwarranted, but only that whatever sentence is imposed after remand must also provide
for the statutorily required review hearing if the sentence exceeds twenty years.
9
at most, would result in the juvenile being released from prison at the age of sixty-eight,
was not a de facto life sentence in violation of Graham, and thus, was constitutional.
Williams v. State, 41 Fla. L. Weekly D508 (Fla. 2d DCA Feb. 26, 2016). Also, in Kelsey
v. State, 183 So. 3d 439 (Fla. 1st DCA 2015), the First District Court of Appeal, in a 2-1
per curiam opinion, concluded that it was constrained to affirm the forty-five-year
concurrent sentences imposed upon the juvenile nonhomicide offender because the
sentences were not de facto life sentences to which Graham applies.6 Most recently, in
Collins v. State, 41 Fla. L. Weekly D1003 (Fla. 1st DCA Apr. 25, 2016), the First District
held that fifty-five-year aggregate sentences for nonhomicide crimes that the defendant
committed as a minor did not amount to a de facto life sentence. To date, the Florida
Supreme Court has not specifically answered the question of when a lengthy term-of-
years sentence becomes a de facto life sentence. See Guzman v. State, 183 So. 3d
1025, 1026 (Fla. 2016) (discharging jurisdiction and declining to address the certified
6 The First District certified the following question to the Florida Supreme Court as
one of great public importance:
WHETHER A DEFENDANT WHOSE INITIAL SENTENCE
FOR A NONHOMICIDE CRIME VIOLATES GRAHAM v.
FLORIDA, AND WHO IS RESENTENCED TO
CONCURRENT FORTY-FIVE YEAR TERMS, IS ENTITLED
TO A NEW RESENTENCING UNDER THE FRAMEWORK
ESTABLISHED IN CHAPTER 2014-220, LAWS OF
FLORIDA?
Kelsey, 183 So. 3d at 442. The supreme court has accepted jurisdiction. Kelsey v. State,
No. SC15-2079, 2015 WL 7720518 (Fla. Nov. 19, 2015).
6
question regarding the point at which a term-of-years sentence becomes a de facto life
sentence).7
However, in Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), the First District
Court of Appeal affirmed, after resentencing, a juvenile offender’s thirty-year sentence for
armed robbery and concurrent forty-year sentence for first-degree murder. The Florida
Supreme Court quashed this decision and remanded for sentencing in conformance with
the 2014 juvenile sentencing statutes. Thomas v. State, 177 So. 3d 1275 (Fla. 2015).
Though Thomas involved a juvenile who committed a homicide, thereby implicating Miller
and not Graham, as noted by Judge Benton in his dissenting opinion in Kelsey, if the
constitutionality of a juvenile nonhomicide offender’s sentence is based solely on whether
the juvenile received a de facto life sentence, then, pursuant to Thomas, a juvenile
homicide offender whose forty-year sentence is invalid, and therefore entitled to
resentencing under the new juvenile sentencing law, is actually treated more favorably
than a juvenile nonhomicide offender, such as Mr. Kelsey, whose forty-five-year sentence
was affirmed as constitutional. See Kelsey, 183 So. 3d at 447 n.6 (Benton, J., dissenting).
As evidenced by the foregoing, after Henry and Gridine, the intermediate appellate
courts have attempted to narrow the line of demarcation for when a juvenile nonhomicide
offender’s sentence becomes a de facto life sentence and, therefore, unconstitutional.
7 In her concurring opinion, Justice Pariente explained that discharge was
appropriate because, though Guzman committed his offenses while a juvenile, he was
initially placed on probation. Guzman, 183 So. 3d at 1026 (Pariente J., concurring).
Guzman thereafter violated his probation after he turned eighteen, prompting the trial
court to revoke and terminate his probation and sentence him to sixty years in prison. Id.
Justice Pariente made clear that the only reason that Guzman’s sixty-year sentence
would not be otherwise unconstitutional under Graham was because Guzman violated
his probation and received his sixty-year sentence after he became an adult. Id. at 1027.
7
From the seventy-year sentence determined to be unconstitutional in Gridine, our court
has held that a sixty-year sentence is unconstitutional, while a sister court has determined
that a fifty-five year sentence is constitutional. Here, we are tasked with deciding whether
Peterson’s fifty-six year sentence is constitutional. Our review of the constitutionality of
a sentence is de novo. Abrams v. State, 971 So. 2d 1033, 1035 (Fla. 4th DCA 2008)
(citing Russ v. State, 832 So. 2d 901, 906 (Fla. 1st DCA 2002)).
We conclude, based on the specific language in Henry and the court’s ruling in
Thomas, that the constitutionality of a juvenile offender’s lengthy term-of-years sentence
is not solely dependent on the juvenile’s life expectancy at the time of sentencing, i.e.
whether a de facto life sentence has been imposed. In its analysis of Graham, nowhere
does the court in Henry specifically state that only term-of-years sentences that
chronologically compute to de facto life sentences are unconstitutional. From Henry and
Thomas, we discern that our supreme court intends that lengthy term-of-year sentences
for these types of offenders, without a review mechanism and the opportunity for early
release, are constitutionally infirm, regardless of whether the sentence is a de facto life
sentence. Accordingly, we conclude that the court’s admonition that a constitutional
sentence is one that provides a meaningful opportunity for early release is not satisfied
simply because the juvenile may be geriatrically released from prison at some point
before the conclusion of his or her statistical or actuarial life expectancy.8
8 As we discussed in our opinion in Henry—a myriad of diverse factors, such as
race, gender, or socioeconomic status arguably can affect an individual’s life expectancy.
Henry, 82 So. 3d at 1089. In the instant case, Peterson is an African American male. If
he serves his complete sentence, Peterson will be approximately seventy-four years old
when released from prison. Depending on which specific life expectancy table is used,
Peterson may well have received a de facto life sentence. However, for a similarly
situated white male or white female, whose statistical life expectancy is arguably longer,
8
Finally, we recognize that Peterson’s judgment and sentence was final long before
the United States Supreme Court issued Graham. Recently, that Court determined that
its decision in Miller, which held that life sentences for juveniles convicted of homicide
was unconstitutional, was entitled to retroactive effect. Montgomery v. Louisiana, 136 S.
Ct. 718 (2016). The Florida Supreme Court has also held that Miller is to be applied
retroactively. Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015). We agree with our sister
courts that there is no material difference between Graham and Miller in terms of the
analysis required for retroactivity, Williams, 41 Fla. L. Weekly D508; St. Val v. State, 107
So. 3d 553, 554 (Fla. 4th DCA 2013), and expressly join these courts in concluding that
Graham is to be applied retroactively.9 Therefore, we hold that Peterson’s initial fifty-six-
year sentence was prohibited under the Eighth Amendment and direct that Peterson be
resentenced in light of the new juvenile sentencing legislation now codified at sections
775.082, 921.1401, and 921.1402, Florida Statutes.10 See Horsley, 160 So. 3d at 395.
then a fifty-six-year sentence is not a de facto life sentence. Moreover, as we raised in
Henry, it is unclear whether gain time would be a factor in this analysis. Id. If it is, and,
pursuant to section 921.002(1)(e), Florida Statutes (2002), Peterson serves only eighty-
five percent of his sentence, then his sentence is not a de facto life sentence, but then
the sixty-year sentence in Guzman, that Justice Pariente clearly inferred would be an
unconstitutional sentence, would arguably not be a de facto life sentence if Guzman’s
nine years of gain time is considered.
9 In Weiand v. State, 129 So. 3d 434, 434–35 (Fla. 5th DCA 2013), we reversed
life sentences imposed on a juvenile nonhomicide offender in 1988 and remanded for
resentencing, impliedly concluding that Graham applied retroactively.
10 To be clear, we are not holding or suggesting that a fifty-six-year sentence is
unwarranted, but only that whatever sentence is imposed after remand must also provide
for the statutorily required review hearing if the sentence exceeds twenty years.
9
Perceiving the need for additional guidance from our supreme court regarding
lengthy term-of-years sentences imposed on juvenile nonhomicide offenders prior to July
1, 2014, we certify the following questions as being of great public importance:
1. DOES HENRY V. STATE, 175 SO. 3D 675 (FLA.
2015), ONLY APPLY TO LENGTHY TERM-OF-YEARS
SENTENCES THAT AMOUNT TO DE FACTO LIFE
SENTENCES?
2. DOES HENRY APPLY RETROACTIVELY TO
SENTENCES THAT WERE FINAL AT THE TIME HENRY
WAS DECIDED?
3. IF HENRY ONLY APPLIES TO DE FACTO LIFE
SENTENCES, THEN, IN DETERMINING WHETHER A
TERM-OF-YEARS SENTENCE IS A DE FACTO LIFE
SENTENCE, SHOULD FACTORS SUCH AS GENDER,
RACE, SOCIOECONOMIC STATUS, AND POTENTIAL
GAIN TIME BE CONSIDERED?
4. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS
SENTENCE BECOME A DE FACTO LIFE SENTENCE?
We also certify conflict with Collins, 41 Fla. L. Weekly D1003, which held that a
juvenile nonhomicide offender’s aggregate fifty-five-year prison sentence is valid.
SENTENCE VACATED; REMANDED FOR RESENTENCING; QUESTIONS
CERTIFIED; CONFLICT CERTIFIED.
TORPY, J., concurs.
BERGER, J., concurs in part and dissents in part, with opinion.
10
BERGER, J., concurring in part; and dissenting in part. 5D15-3799
I agree with the majority decision to certify questions of great public importance.
However, because I cannot conclude that Peterson's fifty-six year prison sentence
constitutes a de facto life sentence, I respectfully dissent.
11