Marshall v. State
Decision Date | 18 October 2019 |
Docket Number | Case No. 2D16-1095 |
Citation | 313 So.3d 671 |
Parties | Larry MARSHALL, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
IT IS ORDERED that the appellant's motion for rehearing is denied. The order dated June 28, 2019, is withdrawn and the attached order is substituted therefor.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
v. STATE OF FLORIDA, Appellee.
Opinion filed October 18, 2019.
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County; Peter F. Estrada, Judge.
Howard L. Dimmig, II, Public Defender, and Robert A. Young, General Counsel, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
Larry Marshall has filed a motion to enforce this court's mandate in Marshall v. State, 214 So. 3d 776 (Fla. 2d DCA 2017). We deny Marshall's motion because an intervening supreme court decision establishes that our opinion is no longer correct.
Marshall was sentenced in 1976 to ninety-nine years in prison with the possibility of parole for nonhomicide offenses he committed when he was a juvenile. In 2015, he filed a postconviction motion asserting that his sentence was a de facto life sentence and therefore unconstitutional under the supreme court's reasoning in Henry v. State, 175 So. 3d 675 (Fla. 2015). The postconviction court denied the motion, but this court reversed and remanded for resentencing, holding that "it follows from Henry and Atwell [v. State, 197 So. 3d 1040 (Fla. 2016),] that a nonhomicide juvenile offender's term-of-years sentence with the possibility of parole can violate the Eighth Amendment." Marshall, 214 So. 3d at 779. But before Marshall was resentenced, the supreme court concluded that Atwell was wrongly decided. See Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018) ; see also State v. Michel, 257 So. 3d 3, 6 (Fla. 2018). As a result, the postconviction court granted the State's motion to deny resentencing.
Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965) ; see also Trotter v. State, 690 So. 2d 1234, 1237 (Fla. 1996) (); Morales v. State, 580 So. 2d 788, 788 (Fla. 3d DCA 1991) ( ). Because our reasoning in Marshall has been superseded by the supreme court in Franklin, we deny Marshall's motion to enforce mandate.
Motion to enforce mandate denied.
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