Andrevil v. State

• Decision Date: 16 August 2017
• Docket Number: No. 4D14-4700.,4D14-4700.
• Parties: Noelson ANDREVIL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

226 So.3d 867

Noelson ANDREVIL, Appellant,
v.
STATE of Florida, Appellee.

No. 4D14-4700.

District Court of Appeal of Florida, Fourth District.

[August 16, 2017]

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

Taylor, J.

This appeal challenges concurrent 35–year prison sentences imposed on a juvenile offender on resentencing after the United States Supreme Court decided Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and the Florida Legislature enacted chapter 2014–220, Laws of Florida. We reverse appellant's sentences and affirm as to the other points raised on appeal.

In 2008, appellant was 17 years old when he was charged as an adult with attempted armed robbery while wearing a mask (Count I), burglary of a dwelling with an assault or battery while armed (Count II), robbery with a weapon while wearing a mask (Count III), and robbery with a deadly weapon while wearing a mask (Count IV). In 2010, appellant entered a no contest plea to Counts II–IV and was sentenced to 35 years in prison, followed by ten years of probation on Counts II and IV, and to 30 years in prison on Count III, concurrent with the sentences on Counts II and IV. The state entered a nolle prosequi on Count I.

Ten days after appellant's sentence, the United States Supreme Court decided Graham . Graham held that the Eighth Amendment prohibits life sentences without parole for juvenile offenders who commit nonhomicide crimes. Graham , 560 U.S. at 74–75, 130 S.Ct. 2011. The Court noted that there were fundamental differences in development and reasoning between juveniles and adults, including a juvenile's (1) lack of maturity and underdeveloped sense

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of responsibility; (2) vulnerability to negative influences and outside pressures; and (3) character that is not as well formed as that of adults. Id. at 68, 130 S.Ct. 2011 (citing Roper v. Simmons , 543 U.S. 551, 569–70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ). The Court thus held that states must give such juvenile offenders "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 75, 130 S.Ct. 2011.

In light of Graham , in May 2011, appellant moved for postconviction relief. He argued, among other things, that his trial counsel was ineffective for failing to inform him that he could have withdrawn his plea due to the material change in the law following Graham . After an evidentiary hearing, the trial court ruled that appellant's trial counsel was ineffective for failing to file a motion to withdraw appellant's plea after Graham was decided.

In August 2014, appellant was 23 years old when he again pled no contest to the charges against him. This time, appellant pled to armed burglary with an assault or battery (Count II) and robbery with a deadly weapon (Count IV). The state nolle prossed Counts I and III. Following the sentencing hearing, in November 2014, the court adjudicated appellant and sentenced him to concurrent terms of 35 years in prison, followed by ten years of probation, with credit for 1,933 days.

Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) with the sentencing court, arguing that he should have been sentenced based on the guidelines in Graham and section 921.1402(2)(d), Florida Statutes (2014). The trial court denied the motion because appellant's offense predated the July 1, 2014 offense date stated in section 921.1402, and because appellant's sentence was not a de facto life sentence subject to the requirements of Graham .

On appeal, appellant argues that the 35–year prison sentence, followed by ten years of probation, does not afford a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation and, thus, violates the Eighth Amendment's ban on cruel and unusual punishment.

In appellant's initial brief, he argued that his concurrent 35–year sentences constitute a de facto life sentence, based on mortality statistics, quality of life measures, and the lack of a meaningful opportunity for release based on maturity and rehabilitation. As such, appellant argued that he should be resentenced with retroactive application of the new juvenile sentencing legislation enacted by the Florida Legislature in chapter 2014–220, Laws of Florida.¹ See Horsley v. State , 160 So.3d 393, 395, 404–06 (Fla. 2015) (holding that the appropriate remedy for cases involving juvenile offenders whose sentences are unconstitutional under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) is to apply chapter 2014–220, Laws of Florida, even if their offenses were committed prior to the legislation's effective date).

During much of the pendency of this appeal, the law in Florida regarding Graham's application to term-of-years sentences was uncertain. Several Florida districts courts, including ours, had concluded

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that Graham does not apply to lengthy term-of-years sentences which do not constitute de facto life sentences requiring resentencing under chapter 2014–220. See , e.g. , Davis v. State , 199 So.3d 546, 550 (Fla. 4th DCA 2016) (holding that a defendant's 75–year sentence does not constitute a de facto life sentence because the defendant has a meaningful opportunity for release during his natural life); Abrakata v. State , 168 So.3d 251, 251–52 (Fla. 1st DCA 2015) (finding that a juvenile's 25–year sentence, day-for-day, does not amount to a de facto life without parole sentence since the defendant will be in his early forties when he is released from prison and declining to retroactively apply the sentencing provisions of chapter...