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Florida Third District Court of Appeal – Criminal Headnotes – October 11, 2017

FREDDY CASTELLON-LOPEZ V. STATE OF FLORIDA – NO ABUSE OF DISCRETION IN DENYING JURY'S REQUEST FOR READ-BACK OF TESTIMONY

            Direct appeal from conviction and sentencing for lewd and lascivious conduct with a child under age 16.

            The appeals court rejected without discussion the defendant's assignment of fundamental error in allowing certain comments by the prosecutor in closing argument.

            The court found no abuse of discretion in the trial court denying the jury's request for a read-back of the entire testimony of both the defendant and the victim.  In fact the jury had requested a transcript, which the appeals court noted the trial court had correctly refused, citing Hazuri v. State, 91 So. 3d 836 (Fla. 2012).  The trial court did not "mislead [the] jury into believing read-backs are prohibited," the appeals court said.  Instead, as required by Hazuri, it instructed the jury it could provide read-backs of specified portions of the testimony.

            Affirmed.

JEFFREY L. VENNISEE V. STATE OF FLORIDA – PAROLE REVOCATION; ILLEGALITY OF UNDERLYING LIFE SENTENCE FOR HOMICIDE COMMITTED AS A MINOR

            Appeal from denial of motion for post-conviction relief from sentencing which included revocation of parole from a life sentence for second-degree murder committee when the defendant was a minor.  The defendant argued the underlying 1979 sentence was illegal in light of Miller v. Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016).

            The appeals court reviewed the evolution of juvenile sentencing law, starting with Roper v. Simmons, 543 U.S. 551 (2005), in which the Supreme Court first held that a sentence of death for a crime committed by a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  In Graham v. Florida, 560 U.S. 48 (2010), the Court extended this reasoning to a life sentence without the possibility of parole imposed for a nonhomicide offense committed while the defendant was a minor.

            The appeals court noted, however, that the Court in Graham expressly said it was not requiring that a defendant actually be released, only that parole be a possibility.

            In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court ruled unconstitutional "a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," whether for a homicide or a non-homicide offense.  In Falcon v. State, 162 So. 3d 954 (Fla. 2015), the Florida Supreme Court determined that Graham and Miller were to be applied retroactively.

            In Henry v. State, 175 So. 3d 675 (Fla. 2015), the Court extended the reasoning of Roper and Graham to term-of-years sentences that "do not afford any meaningful opportunity to obtain release based on the offender's demonstrated maturity and rehabilitation.  Finally, in Atwell v. State, 197 So. 3d 1040 (Fla. 2016), the Court held that a mandatory life sentence for a homicide committed while the defendant was a juvenile, even with the possibility of parole after 25 years, is unconstitutional.  The cumulative sentences in Atwell extended well beyond the defendant's life expectancy.

            The appeals court summarized the current state of juvenile sentencing law as follows:

            (1) a mandatory life sentence, with or without the possibility of parole, for a juvenile convicted of either a homicide or a non-homicide offense, is unconstitutional;

            (2) a sentence for a non-homicide offense which does not provide for a meaningful opportunity for release based on demonstrated maturity and rehabilitation, whether imposed initially or on resentencing, is unconstitutional; and

            (3) when a juvenile is resentenced for a non-homicide offense because the original sentence violated Graham, the resentencing must be done pursuant to the new juvenile sentencing guidelines enacted in 2014 to bring Florida into compliance with the Graham and Miller decisions.

            In the present case, however, the appeals court determined -- as in its recent decision in Rooks v. State, 42 Fla.L.Weekly D1573 (Fla. 3d DCA 07/12/17) -- that not only had the defendant already been provided a meaningful opportunity to obtain release, he had in fact been released, and then violated the terms of his release by committing felonies while an adult.  Therefore he was not entitled to a resentencing.

            Affirmed.