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Florida Third District Court Of Appeal – Criminal Headnotes – July 19, 2017

LUIS ORLANDO PIZZARO-ORTIZ V. STATE OF FLORIDA – VACATING SENTENCES IMPOSED WHEN DEFENDANT WAS A MINOR

Appeal from denial of motion to vacate concurrent life sentences for first-degree murder and armed robbery imposed when defendant was a minor.

The defendant argues the sentences were illegal in light of Graham v. Florida, 560 U.S. 48 (2010), which held the Eighth Amendment forbids a life sentence without possibility of parole for a minor on a non-homicide conviction, and Miller v. Alabama, 567 U.S. 460 (2012), extending Graham to rule unconstitutional a mandatory life sentence without possibility of parole for a minor on a homicide conviction, and in light of a Florida supreme court decision applying those rulings, Atwell v. State, 197 So.3d 1040 (Fla. 2016).

The state argues those rulings do not apply (a) because the sentences here were not mandatory, and (b) the defendant was, in fact, eligible for parole.

The appeals court rejects the state’s arguments, noting the Florida supreme court in Landrum v. State, 192 So.3d 459 (Fla. 2016), determined even a discretionary life sentence without parole violates Miller, and noting its own recent decision in Miller v. State, 208 So.3d 834 (Fla. 3d DCA 2017), that “all juveniles are entitled to judicial review and resentencing” under the new juvenile sentencing legislation enacted in 2014.

Reversed and remanded for resentencing.

CLARENCE MOORE V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF COUNSEL – IMPROPER COMMENTS BY PROSECUTOR IN CLOSING ARGUMENT

Appeal from denial of motion for post-conviction relief.

The appeals court finds no merit in the defendant’s claim trial counsel was ineffective in failing to object to comments the prosecutor made in closing argument, as these were not in fact improper, and in any event, even if an objection had been made and sustained, and a curative instruction given to the jury, there is “no reasonable probability” this would have altered the outcome, as required by Strickland v. Washington, 466 U.S. 668 (1984).

Affirmed.

DALE BROWN V. STATE OF FLORIDA – PROBATION REVOCATION; SENTENCING ERROR

Appeal from order revoking probation.

Although the sentence pronounced orally from the bench differed from the written sentencing order, this error was not preserved for direct appeal, and would require a motion for post-conviction relief.

Affirmed without prejudice to the filing of a motion under Rule 3.800(a).