Geter v. State
| Decision Date | 26 June 2013 |
| Docket Number | No. 3D12–1736.,3D12–1736. |
| Citation | 115 So.3d 385 |
| Parties | Drewery GETER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami–Dade County, Stacy D. Glick, Judge.
Drewery Geter, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before WELLS, C.J., and SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, and LOGUE, JJ.
ON MOTION FOR REHEARING EN BANC
The motion for rehearing en banc is denied. See Hernandez v. State, ––– So.3d ––––, 2012 WL 5869660 at *6 (Fla.2012); Anderson v. State, No. 5D12–4335, 2013 WL 183973, at *1 (Fla. 5th DCA Jan.15, 2013); Ferrell v. State, No. 5D12–4333, 2013 WL 183975, at *1 (Fla. 5th DCA Jan.15, 2013); Kennedy v. State, 106 So.3d 512 (Fla. 5th DCA 2013); Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012) ()
I respectfully dissent from the denial of Appellant's motion, which seeks rehearing en banc and certification of the question to the Florida Supreme Court as one of great public importance. I believe that this court should grant rehearing en banc and, for the reasons expressed herein, should hold that the decision in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), applies retroactively to cases already final on direct appeal. Regardless of the merits decision, I believe that this court should certify the question to the Florida Supreme Court as one of great public importance.
The question presented is whether the rule announced in Miller v. Alabama should be applied retroactively to cases already final on direct appeal.
In 2000, Geter (a juvenile at the time of his offense) was arrested and charged with first-degree murder. In 2003, he was convicted,and the trial court imposed a mandatory, non-discretionary sentence of life imprisonment without the possibility of parole. No sentencing hearing was held or required before imposition of the sentence, as the sentence imposed was mandated by section 775.082, Florida Statutes (2000),1 and the trial court was without discretion to impose any sentence other than life without parole.
In 2004, this court affirmed Geter's conviction and sentence, and several postconviction motions thereafter were denied by the trial court and affirmed by this court.
In 2012, the United States Supreme Court held in Miller that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ” Miller, 132 S.Ct. at 2460.
Thereafter, Geter filed a pro se motion for postconviction relief, asserting that the decision in Miller should be applied retroactively, and that he therefore is entitled to an individualized sentencing proceeding at which he can present (and the trial court can consider) mitigating evidence in support of a sentence of something less than life in prison without the possibility of parole. The trial court denied the motion and Geter filed a pro se appeal. A panel of this court affirmed, holding Miller should not be applied retroactively. Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012).
I believe rehearing en banc is appropriate for the following reasons:
1. The procedural posture of Geter, and the significance of the issue presented, warrants en banc consideration;
2. The procedural posture of Miller signals a clear intention by the United States Supreme Court to apply Miller retroactively;
3. The Miller Court's equating of a juvenile's mandatory life-without-parole sentence to an adult death sentence signals a clear intention by the United States Supreme Court to apply Miller retroactively;
4. The new rule announced in Miller is based upon a series of decisions which have been applied retroactively by the Florida Supreme Court; and
5. The decision in Miller constitutes a development of fundamental significance, not a mere evolutionary refinement of the law and, pursuant to Witt v. State, 387 So.2d 922 (Fla.1980), should be applied retroactively.
Geter prosecuted the appeal on his own, and the merits portion of his pro se brief was merely two pages. No briefing was ordered from the State, and no oral argument was held. Following issuance of the panel opinion affirming the trial court, a notice of appearance was filed by counsel (presumably pro bono) together with a motion for rehearing, rehearing en banc, or for certification to the Florida Supreme Court. Given the exceptional importance of the issue presented in this case, en banc consideration under Florida Rule of Appellate Procedure 9.331(d)(1) is warranted, including appointing counsel for Geter (if current counsel does not wish to proceed further), a full briefing from the parties, and oral argument.
Miller involved two appeals consolidated by the Supreme Court. Defendant Miller arrived at the Supreme Court on a petition for writ of certiorari following an unsuccessful direct appeal to the Alabama Supreme Court. Miller's case was therefore not yet final on direct appeal. However, the case of the second defendant, Kuntrell Jackson, was already final on direct appeal, arriving at the United States Supreme Court following the Arkansas trial court's dismissal of his postconviction petition for writ of habeas corpus (and the affirmance of that ruling by the Arkansas Supreme Court). In other words, for Jackson to prevail on his claim, the Supreme Court would implicitly have to find (at least for Jackson) that its decision would be applied to cases which are already final on direct appeal. In reversing the Arkansas Supreme Court's decision, the United States Supreme Court did just that. By applying the newly-announced rule to Jackson's case on collateral review, the Supreme Court's decision would appear to compel its application to other defendants whose cases are already final on direct appeal. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the case in which the Supreme Court fashioned the retroactivity analysis currently in use in federal court and many state courts, the United States Supreme Court recognized this very principle:
[O]nce a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.
Id. at 300 (emphasis added). The Supreme Court explained, by its holding, the effect of a determination that a new rule is to be applied retroactively:
We therefore hold that, implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review.
In Miller, 132 S.Ct. at 2461, Kuntrell Jackson sought, through a petition for writ of habeas corpus, the announcement of a new constitutional rule. The Supreme Court announced a new constitutional rule in Miller, and applied it to Jackson, a defendant whose case was already final on direct appeal. Given the Teague Court's holding above, it would appear that the Miller Court intended that the rule it announced be applied retroactively to all defendants on collateral review.2
On the merits, I believe Miller should be applied retroactively and that the United States Supreme Court will ultimately hold the same. This conclusion is based upon a review of the cases relied upon by the Miller Court in announcing a new rule of law. The new law announced in Miller: A statutory scheme which mandates imposition of the maximum possible sentence upon a juvenile offender (life without parole) without the opportunity for the sentencer to consider any circumstances of the crime or of the criminal that mitigate against a sentence of life without parole, violates the Eighth Amendment to the United States Constitution.
The Supreme Court concluded that this new rule of law finds its roots in a line of cases arising in the death penalty context. Those cases, in summary, held: A statutory scheme which permits the imposition of the maximum possible sentence upon an adult offender (the death penalty) without the opportunity for the sentencer to consider all circumstances of the crime or of the criminal that mitigates against a sentence of death, violates the Eighth Amendment to the United States Constitution.
The Miller Court drew a direct analogy between the Eighth Amendment guarantees afforded to an adult offender sentenced to death and a juvenile offender sentenced to life without parole. The Miller Court began its discussion by referencing one particular aspect of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Graham held that the Eighth Amendment prohibits the impositionof a life-without-parole sentence on a juvenile offender who did not commit a homicide. In so doing, the Graham Court equated a juvenile's life-without-parole sentence to an adult sentence of death, since these are the maximum lawful sentences which can be imposed on the respective class of offenders.3 The Miller Court expounded on this premise (citations...
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...offenses. The postconviction court dismissed her motion as untimely, relying on the Third District's decision in Geter v. State, 115 So.3d 375, 385 (Fla. 3d DCA 2012) (en banc), which held that the Miller decision does not apply retroactively. The First District reached the same conclusion ......
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