Thomas v. State, CASE NO. 1D10-1613

• Decision Date: 30 December 2011
• Docket Number: CASE NO. 1D10-1613
• Parties: DARYL D. THOMAS, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

DARYL D. THOMAS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D10-1613

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

Opinion filed December 30, 2011.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR

REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Duval County.

Elizabeth A. Senterfitt, Judge.

James T. Miller, Jacksonville, for Appellant.

Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, Amicus Brief of the Florida Association of Criminal Defense Lawyers in support of Appellant.

Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Daryl D. Thomas, was convicted of armed robbery and aggravated battery and was sentenced to concurrent terms of fifty years'imprisonment with twenty-five-year mandatory minimums. First, Appellant argues that the trial court erred in allowing the State to use a peremptory challenge on an African-American juror. Even if this issue had been preserved for appellate review, it is without merit. Second, Appellant argues that his sentence is unconstitutional pursuant to Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), because he was seventeen years old when he committed the charged crimes.

The victim, Alphonso Fly, was shooting dice with Dominique Lloyd behind an abandoned house, and Appellant and others were watching the game. Fly went to his truck during the game to get $100 so he could continue to play dice. Appellant told one of the on-lookers that he was going to rob Fly. Fly was shooting the dice when Appellant walked behind him, pulled a gun, and told him to "give it up." Fly struggled with Appellant over the gun, but Appellant shot Fly in the back, paralyzing Fly from the waist down. The trial court originally sentenced Appellant to concurrent terms of life imprisonment, but, pursuant to a Florida Rule of Criminal Procedure 3.800(b)(2) motion, the trial court reduced the life sentences to concurrent terms of fifty years' imprisonment after considering the reasoning of Graham.

Defense counsel filed a second rule 3.800(b)(2) motion arguing that Appellant's sentence of fifty years' imprisonment violated the spirit of Graham because Appellant would not receive review of his sentence until he completedserving 85% of his sentence. The trial court denied this motion, finding that the fifty-year sentence was not the functional equivalent of a life sentence because the average life expectancy for an African-American male was 70.2 years; thus, even if Appellant served his entire sentence, he would only be in his late sixties when he was released. Appellant argues that the trial court erred in denying the 3.800(b)(2) motion and urges this Court to find that his sentence is unconstitutional.

In Graham, the defendant committed armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. Id. at 2018. The trial court withheld adjudication of guilt and sentenced Graham to concurrent terms of three years' probation. One year later, Graham admitted to violating the terms of his probation, and the trial court adjudicated him guilty of the underlying offenses and sentenced him to concurrent terms of life imprisonment and fifteen years' imprisonment. Id. at 2019-20. Graham argued that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. Id. at 2020. Due to juveniles' diminished moral responsibility, the Supreme Court held that the Eighth Amendment prohibited life sentences without the possibility for parole for juveniles convicted of nonhomicide crimes because life sentences improperly denied juvenile offenders a chance to demonstrate growth and maturity. Id. at 2029-30.

Appellant asks this Court to apply Graham to his case and find that his concurrent fifty-year sentences are the functional equivalent of life sentences. However, the Supreme Court specifically limited its holding to only "those juvenile offenders sentenced to life without parole solely for a nonhomicide offense." Id. at 2023. While we agree that at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we do not believe that situation has occurred in the instant case. See United States v. Mathurin, 2011 WL 2580775 (S.D. Fla. June 29, 2011) (finding that a mandatory minimum sentence of 307 years' imprisonment for a juvenile was unconstitutional); People v. Mendez, 114 Cal. Rptr. 3d 870 (2010) (holding that an eighty-four-year sentence for a sixteen-year-old offender for a nonhomicide offense was unconstitutional). As found by the trial court, Appellant would be in his late sixties when he is released from prison if...