Davis v. State, CASE NO.: SC16-1905

• Decision Date: 19 January 2018
• Docket Number: CASE NO.: SC16-1905
• Parties: ROBERT LEE DAVIS, JR. Petitioner(s) v. STATE OF FLORIDA Respondent(s)
• Court: Florida Supreme Court

ROBERT LEE DAVIS, JR. Petitioner(s) v. STATE OF FLORIDA Respondent(s)

CASE NO.: SC16-1905

Supreme Court of Florida

JANUARY 19, 2018

Lower Tribunal No(s).: 4D15-3277; 561991CF000337AXXXXX

Upon review of the response to this Court's Order to Show Cause dated May 8, 2017, the Court has determined that it should accept jurisdiction in this case. It is ordered that the Petition for Review is granted, that the Fourth District Court of Appeal's decision in this case is quashed, and this matter is remanded for resentencing in light of the decision in Johnson v. State, 215 So. 3d 1237 (Fla. 2017).

No Motion for Rehearing will be entertained by the Court.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., concur.

POLSTON, J., dissenting.

I would not remand this case for resentencing. Unlike the majority, I believe that a juvenile nonhomicide offender's sentence must violate Graham v. Florida, 560 U.S. 48 (2010), in order for that defendant to be entitled to resentencing

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pursuant to Graham. See Kelsey v. State, 206 So. 3d 5, 14 (Fla. 2016) (Polston, J., dissenting). In this case, as the Fourth District explained, Davis "is expected to be released when he is in his mid-50s." Davis v. State, 199 So. 3d 546, 547 (Fla. 4th DCA 2016). Therefore, because Davis' sentence is not a de facto life sentence, resentencing pursuant to Graham is not applicable. Accordingly, I respectfully dissent.

CANADY and LAWSON, JJ., concur.

A True Copy

Test:

/s/_________

John A. Tomasino

Clerk, Supreme Court

sh

Served:

MITCHELL ALAN EGBER

ASHLEY N. MINTON

HON. LONN WEISSBLUM, CLERK

HON. JOSEPH E. SMITH, CLERK

HON. ROBERT EUGENE BELANGER, JUDGE