Neely v. State

Third District Court of Appeal
State of Florida
Opinion filed November 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1052
Lower Tribunal No. 05-5530C
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Cordero Neely,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Charles G. White, for appellant.
Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.
Before WELLS, FERNANDEZ and SCALES, JJ.
FERNANDEZ, J.
Cordero Neely appeals his life sentence without parole. We reverse Neely’s
non-homicide and first-degree murder sentences and remand for resentencing
because a life sentence for juvenile offenders is impermissible without a
meaningful opportunity for release as provided for in section 775.082(1)(b)(1),
Florida Statutes (2014), and section 921.1402, Florida Statutes (2015). We base
our decision on statutory interpretation and juvenile sentencing jurisprudence for
which we provide a brief overview.
Our discussion begins with Miller v. Alabama, 132 S. Ct. 2455 (2012) and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Miller involved a juvenile
convicted of murder and sentenced to life without the possibility of parole where
the United States Supreme Court held that the Eighth Amendment prohibits a
“sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” Miller, 132 S. Ct. at 2469. Montgomery involved a juvenile
convicted of murder and sentenced to life without parole. Montgomery, 136 S. Ct.
at 725. In Montgomery, the United States Supreme Court reiterated Miller’s
determination “that sentencing a child to life without parole is excessive for all but
‘the rare juvenile offender whose crime reflects irreparable corruption’ … [which
renders] a life sentence without parole an unconstitutional penalty for ‘a class of
defendants because of their status’—that is, juvenile offenders whose crimes
reflect the transient immaturity of youth”). Id. at 734. It further declared that
Miller’s retroactive effect does not require states to re-litigate sentences in cases
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where juvenile offenders received a mandatory life without parole sentence. Id. at
736.
The Florida Supreme Court held in Falcon v. State, 162 So. 3d 954 (Fla.
2015), that Miller applied retroactively, and the appropriate remedy for a Miller
violation was resentencing the juvenile offender pursuant to sections 775.082,
921.1401 and 921.1402, Florida Statutes. Id. at 956. Additionally, the Florida
Supreme Court held most recently in Landrum v. State, 192 So. 3d 459 (Fla. 2016),
where a juvenile was convicted of second degree murder and sentenced to life
without parole, that the life sentence without parole was unconstitutional based on
a pre-Miller sentencing scheme that did not require consideration of a youth’s
distinctive attributes. Id. at 469. The Florida Supreme Court held that the proper
remedy for a Miller violation is resentencing under the new statutory scheme. Id.
at 465. “Life imprisonment remains a possibility if the trial court conducts an
individualized sentencing proceeding, with mandatory subsequent judicial review
available for those juvenile offenders who ‘actually killed, intended to kill, or
attempted to kill,’ that are sentenced to a term of imprisonment of more than
twenty-five years. For those offenders in this category who ‘did not actually kill,
intend to kill, or attempt to kill,’ the subsequent judicial review is available for a
sentence of more than fifteen years.” Id. (emphasis in original)(citing to Horsley
v. State, 160 So. 3d 393, 404 (Fla. 2015)). See also Atwell v. State, 197 So. 3d
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1040, 1048-50 (Fla. 2016)(involving a juvenile who received a mandatory term of
life imprisonment for first-degree murder, with the possibility of parole after
twenty-five years, and also a conviction for armed robbery and a sentence of life
imprisonment without the possibility of parole for armed robbery; holding that the
sentences “effectively resemble[d] a mandatorily imposed life without parole
sentence,” which did not provide the juvenile with the “type of individualized
sentencing consideration Miller requires;” stating that “[a] presumptive parole
release date set decades beyond a natural lifespan is at odds with the Supreme
Court’s recent pronouncement in Montgomery” and “the parole system would
nevertheless still have to afford juvenile offenders individualized consideration and
an opportunity for release”).
Accordingly, we reverse Neely’s non-homicide and first-degree murder
sentences and remand to the trial court for the appropriate resentencing under
sections 775.082(1)(b)(1) and 921.1402, and consistent with the cases cited herein.
Reversed and remanded with directions.
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