DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DENNIS L. HART,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2468

[May 2, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-1997-CF-001467-

BXXX-MB.

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, 

Senior Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

LEVINE, J.

The issue in this case is whether a 30-year prison sentence for a nonhomicide offense committed when appellant was a juvenile violates the 

Eighth Amendment or Graham v. Florida, 560 U.S. 48 (2010). Because we 

cannot conclude that the sentence violates the United States Constitution,

we affirm. 

In 1997, appellant entered an open plea to the following offenses 

committed when he was 16 years old: burglary of a dwelling while armed 

with a firearm (count I), robbery with a firearm (counts II-VI), and 

attempted robbery with a firearm (count VII). The trial court sentenced 

him to concurrent terms of 30 years in prison for counts I through VI and 

15 years for count VII.

In 2002, appellant moved to correct his sentence based upon Heggs v. 

State, 759 So. 2d 620 (Fla. 2000). The state conceded there was a Heggs
2

violation. With a corrected scoresheet, appellant’s maximum permissible 

sentence was 21.42 years in prison. The trial court resentenced appellant

on counts II-VI to 20 years in prison. He was not resentenced on count I 

and is still serving 30 years for that offense. It is unclear from the record 

on appeal in this case why appellant was not resentenced on count I. 

In April 2017, appellant filed the instant rule 3.800(a) motion seeking 

resentencing pursuant to Graham, Henry v. State, 175 So. 3d 675 (Fla. 

2015), and Kelsey v. State, 206 So. 3d 5 (Fla. 2016). Appellant argued that 

the trial court must reconsider his sentence in light of the factors 

enumerated in section 921.1401(2), Florida Statutes (enacted as part of 

chapter 2014-220).

The trial court set the case for resentencing. Prior to the hearing, 

defense counsel filed memoranda of law explaining that appellant was 

entitled to resentencing under the 1994 guidelines. Counsel argued that 

the most appellant could receive was 21.42 years in prison and the court 

could not impose an upward departure without violating Apprendi v. New 

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 

(2004). At the time, appellant had served over 20 years in prison. 

The trial court requested additional briefing as to whether resentencing 

was required, and the parties filed additional memoranda. Discussing the 

Florida Supreme Court’s decisions in Kelsey, Henry, and Johnson v. State, 

215 So. 3d 1237 (Fla. 2017), the defense argued that any term-of-year 

sentences for juvenile offenders without review provisions are illegal. The 

state asserted that appellant’s sentence did not constitute a Graham

violation and chapter 2014-220 comes into play only if resentencing is

required. 

The trial court denied appellant’s motion based in part upon this court’s 

decision in Davis v. State, 199 So. 3d 546 (Fla. 4th DCA 2016), which 

involved a 75-year sentence challenged in a motion for postconviction 

relief. In its ruling, the trial court stressed that Kelsey and Johnson were 

cases where the original life without parole sentence for non-homicide 

offenses clearly violated Graham. The court concluded:

While the Court does not believe that the Supreme Court 

has yet to mandate resentencing of all juveniles sentenced to 

a term of years without a review mechanism, this issue is ripe 

for appellate guidance. Certainly there is considerable 

confusion surrounding the status of juvenile offenders whose 

original sentences did not violate Graham. 
3

While this appeal was pending, the Florida Supreme Court quashed 

this court’s decision in Davis and remanded for resentencing in light of the 

decision in Johnson. Davis v. State, SC16-1905, 2018 WL 480516 (Fla. 

Jan. 19, 2018). 

In Graham, the United States Supreme Court held that the Eighth 

Amendment prohibits a non-homicide juvenile offender from receiving a 

sentence of life without parole unless there is “some meaningful 

opportunity to obtain release based on demonstrated maturity and 

rehabilitation.” 560 U.S. at 75. In response to Graham, the Florida 

Legislature enacted chapter 2014-220, Laws of Florida, which has been 

codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. 

Chapter 2014-220 requires that juvenile offenders who commit offenses

after July 1, 2014 receive a review hearing and an opportunity for early 

release after serving 15, 20, or 25 years depending on the crime committed 

and the length of the prison sentence. 

Subsequently, the Florida Supreme Court decided Henry, Kelsey, 

Johnson, and Lee v. State, 234 So. 3d 562 (Fla. 2018). In Henry, a juvenile 

non-homicide offender who was sentenced to life plus 60 years was 

resentenced following Graham to an aggregate of 90 years. 175 So. 3d at 

676. Citing Graham, the supreme court found the new sentence 

unconstitutional and remanded for resentencing under chapter 2014-220. 

Id. at 679-80.

In Kelsey, a juvenile non-homicide offender who was sentenced to life 

plus 25 years was resentenced to 45 years after Graham but before the 

Florida Legislature passed chapter 2014-220. 206 So. 3d at 6-7. The 

supreme court clarified that a term-of-years sentence does not have to 

amount to a de facto life sentence to violate Graham. Id. at 10. The court 

further stated that “juveniles who are serving lengthy sentences are 

entitled to periodic judicial review to determine whether they can 

demonstrate maturation and rehabilitation.” Id. The court concluded that 

the 45-year resentence did not provide a meaningful opportunity for relief 

within his lifetime and remanded for resentencing under chapter 2014-

220. Id. at 11. 

In Johnson, a juvenile non-homicide offender who was sentenced to life 

was resentenced following Graham to 100 years. 215 So. 3d at 1239. The 

supreme court stated that “we have determined that Graham prohibits 

juvenile nonhomicide offenders from serving lengthy terms of incarceration 

without any form of judicial review mechanism.” Id. at 1240. Because the 

sentence violated Graham, the court remanded for resentencing under 

chapter 2014-220. Id. at 1243-44. 
4

In Lee, a juvenile non-homicide offender who was sentenced to life was 

resentenced to 40 years after the decision in Graham but before the Florida 

Legislature passed chapter 2014-220. 234 So. 3d at 563-64. The supreme 

court reversed and remanded for resentencing under chapter 2014-220, 

finding the sentence did not “provide him an opportunity to obtain early 

release based on a demonstration of maturity and rehabilitation before the 

expiration of the imposed term.” Id. at 564.1 

We distinguish Henry, Kelsey, Johnson, and Lee, as those cases all 

involve juvenile non-homicide offenders who were resentenced following 

Graham and whose sentences imposed on resentencing still were

unconstitutional. In those cases, the violation of the dictates of Graham

resulted in resentencing, which was mandated by the Florida Supreme 

Court to be in accordance with chapter 2014-220. In contrast, the instant

case involves an original sentence, and there is no clear authority stating 

that a 30-year sentence violates Graham so as to trigger resentencing 

under chapter 2014-220. The dissent overlooks this distinction and, in 

doing so, conflates Graham and chapter 2014-220. 

Certainly considerable confusion remains as to when a juvenile nonhomicide offender sentence becomes illegal under Graham so as to 

mandate resentencing. In other words, it is unclear whether the triggering 

factor is a per se “lengthy” sentence, a sentence that exceeds the statutory 

threshold of chapter 2014-220, or just any “term-of-years” sentence. 

Despite this confusion, what is clear is that the Florida Supreme Court 

has not plainly required that all “term-of-years” juvenile offender 

sentences—even those of shorter duration—provide a mechanism for early 

release based on demonstrated maturity and rehabilitation. Nor has the 

supreme court expressly stated that any juvenile offender sentence 

exceeding the thresholds for review in chapter 2014-220 is 

unconstitutional or otherwise illegal. 

The Florida Supreme Court has not yet applied Graham to a 30-year or 

shorter sentence. In Abrakata v. State, 168 So. 3d 251 (Fla. 1st DCA 

2015), a juvenile offender who received a 25-year sentence for nonhomicide offenses argued that his sentence violated Graham and that he 

was entitled to review under section 921.1402(2)(c). The First District 

concluded that the sentence did not violate Graham and without a Graham

violation, section 921.1402 did not apply retroactively. Id. at 252. The 

1 Similarly, this court has remanded cases where defendants received 

resentencing mandated by Graham, but did not receive sentence review under 

chapter 2014-220. See Andrevil v. State, 226 So. 3d 867 (Fla. 4th DCA 2017); 

Burger v. State, 232 So. 3d 1 (Fla. 4th DCA 2017). 
5

supreme court declined review. See SC15-1325, 2017 WL 24657 (Fla. Jan. 

3, 2017) (Pariente, J., dissenting). See also Hill v. State, 172 So. 3d 491 

(Fla. 1st DCA 2015), rev. denied, SC15-1667, 2017 WL 24659 (Fla. Jan. 3, 

2017) (Pariente, J., dissenting) (involving a 35-year sentence for nonhomicide offenses); McCullum v. State, 173 So. 3d 1056 (Fla. 1st DCA 

2015), rev. denied, SC15-1770, 2017 WL 24756 (Fla. Jan. 3, 2017) 

(Pariente, J., dissenting) (involving an aggregate 55-year sentence for nonhomicide offenses); Williams v. State, SC16-2170, 2018 WL 1870518 (Fla. 

Apr. 19, 2018) (involving a plurality opinion which, based entirely on the 

state’s concession, ended inquiry and remanded for resentencing of a 35-

year sentence pursuant to chapter 2014-220).

Further, no decision from the Supreme Court of the United States has 

expanded Graham so broadly that it would encompass a 30-year sentence. 

See, e.g., Virginia v. LeBlanc, 137 S. Ct. 1726, 1729 (2017) (holding that it 

was not objectively unreasonable for a Virginia state court to conclude that 

Virginia’s geriatric release program, which employed normal parole factors 

and allowed for conditional release after a defendant reaches age 60 or 65, 

“satisfied Graham’s requirement that juveniles convicted of a nonhomicide 

crime have a meaningful opportunity to receive parole”). 

Our court has also previously declined to find that a 31-year sentence 

imposed for crimes committed prior to the enactment of chapter 2014-220 

requires resentencing. See Tillman v. State, 42 Fla. L. Weekly D1844 (Fla. 

4th DCA Aug. 23, 2017); see also Davis v. State, 214 So. 3d 799 (Fla. 1st 

DCA 2017) (concluding that a juvenile offender’s 35-year sentence for 

homicide and non-homicide offenses did not violate Graham or Miller v. 

Alabama, 567 U.S. 460 (2012), so resentencing was not required). 

There is simply no authority—either constitutional, statutory, or 

precedential—stating that any “term-of-years” juvenile offender sentence 

that does not provide an opportunity for early release, or any sentence 

exceeding the statutory thresholds in chapter 2014-220, is 

unconstitutional under Graham and requires resentencing even if the 

offense was committed prior to chapter 2014-220’s effective date. In the 

absence of a Graham violation, there is no clear authority to resentence. 

To hold otherwise would effectively require resentencing in every “term-ofyears” case or every case where the sentence exceeds the statutory 

thresholds, no matter when the crime was committed. 

In order for a mandated resentencing under chapter 2014-220 to come 

into play, there must first be a Graham violation. Without a clear violation 

of Graham, there is no requirement for a resentencing under chapter 2014-

220. 
6

Significantly, the prohibition against cruel and unusual punishment in 

the Florida Constitution must be construed in conformity with decisions 

of the Supreme Court of the United States interpreting the Eighth 

Amendment. Art. I, § 17, Fla. Const.; Correll v. State, 184 So. 3d 478, 489 

(Fla. 2015) (“[T]his Court is bound by the conformity clause of the Florida 

Constitution to construe the state prohibition against cruel and unusual 

punishment consistently with pronouncements by the United States 

Supreme Court.”). Thus, we decline to expand the holding of Graham. 

Appellant did not receive a life without parole sentence and, even if he 

serves his 30-year sentence day-for-day, he will be released when he is in 

his forties. Given these circumstances, we cannot conclude that the 30-

year sentence violates the Eighth Amendment or Graham, especially in the 

absence of any authority to the contrary. 

We affirm the trial court’s order and certify conflict with the following 

decisions: Cuevas v. State, 43 Fla. L. Weekly D563 (Fla. Mar. 9, 2018)

(reversing the denial of a rule 3.800(a) motion and concluding that a 

juvenile non-homicide offender’s sentences of 26 years in prison were

unconstitutional under Graham as construed in Henry and Johnson); 

Blount v. State, 43 Fla. L. Weekly D476 (Fla. 2d DCA Feb. 28, 2018) 

(reversing the denial of a rule 3.800(a) motion to correct juvenile nonhomicide sentences of 40 years in prison and remanding for resentencing 

pursuant to Johnson); Mosier v. State, 235 So. 3d 957 (Fla. 2d DCA 2017) 

(reversing the denial of a rule 3.800(a) motion and concluding that a 

juvenile non-homicide offender’s sentences of 30 years in prison followed 

by 10 years of sexual offender probation were unconstitutional under 

Graham as construed in Henry and Johnson); Alfaro v. State, 233 So. 3d 

515, 516 (Fla. 2d DCA 2017) (reversing 30-year sentences for nonhomicide offenses and rejecting trial court’s conclusion that “Kelsey only 

applied to juvenile offenders like Kelsey who initially received life sentences 

but had been resentenced to a term of years under Graham”); Burrows v. 

State, 219 So. 3d 910, 911 (Fla. 5th DCA 2017) (reversing denial of 

postconviction relief and remanding for resentencing where juvenile 

offender received 25-year sentences for non-homicide offenses).

Our affirmance is without prejudice to appellant filing a rule 3.800(a) 

motion to correct an illegal sentence if the sentence on count I violates 

Heggs and the failure to correct the sentence was an oversight or error.

Affirmed. Conflict certified.
7

GERBER, C.J., DAMOORGIAN, CIKLIN, CONNER, FORST, KLINGENSMITH and 

KUNTZ, JJ., concur.

WARNER, J., dissenting. 

As the Florida Supreme Court has already addressed the issue 

presented in the majority opinion, I dissent. I would reverse and remand 

for resentencing of Hart consistent with Lee v. State, 234 So. 3d 562 (Fla. 

2018); Johnson v. State, 215 So. 3d 1237 (Fla. 2017); and Kelsey v. State, 

206 So. 3d 5 (Fla. 2016).

The issue presented is whether a juvenile sentenced, for a nonhomicide offense, to prison for thirty years prior to Henry v. State, 175 So. 

3d 675 (Fla. 2015), must be resentenced. In Kelsey, the court considered 

the following question:

Is a defendant whose original sentence violated Graham v. 

Florida, 560 U.S. 48 [130 S. Ct. 2011, 176 L. Ed. 2d 825] 

(2010), and who was subsequently resentenced prior to July 

1, 2014, entitled to be resentenced pursuant to the provisions 

of chapter 2014–220, Laws of Florida?

Kelsey, 206 So. 3d at 6 (alterations in original). The court answered this 

question in the affirmative. It did not limit its answer to sentences in 

excess of thirty years. After reviewing the prior case law, the court 

concluded that Chapter 2014-220, requiring periodic judicial review, 

should be applied to all juveniles serving lengthy sentences who were 

sentenced prior to Henry:

In other words, we have determined through our reading of 

the Legislature’s intent in passing chapter 2014–220, Laws of 

Florida, that juveniles who are serving lengthy sentences are 

entitled to periodic judicial review to determine whether they 

can demonstrate maturation and rehabilitation. It would be 

antithetical to the precept of Graham and chapter 2014–220, 

Laws of Florida, to interpret them so narrowly as to exclude a 

juvenile offender who happens to have been resentenced 

before this Court issued Henry. 

Kelsey, 206 So. 3d at 10. 

A lengthy sentence thus violates the precepts of Graham when it does 

not provide a means of early release based on maturity. The legislature 
8

settled upon specific judicial review of sentences as satisfying the means 

for release. The court concluded:

In Henry, we determined that the Legislature’s remedy was 

the appropriate remedy in these cases, and the Legislature 

has determined that the “means and mechanisms for 

compliance” with Graham are to provide judicial review 

for juvenile offenders who are sentenced to terms longer 

than twenty years. Therefore Kelsey is entitled to 

resentencing under those provisions. 

Id. at 11 (emphasis added). Thus, the court determined to follow the 

provisions of chapter 2014-220, Laws of Florida, for those pre-Henry

sentences imposed on juveniles which exceed twenty years.

The court expanded that reasoning in Johnson v. State, 215 So. 3d 

1237, 1243 (Fla. 2017), and held that three factors must be considered in 

reviewing a juvenile’s term of years sentence post-Henry.

In other words, pursuant to Henry, we must consider three 

factors when reviewing a juvenile nonhomicide offender’s 

term-of-years sentence. Post–Henry, we must ensure that a 

juvenile nonhomicide offender does not receive a sentence 

that provides for release only at the end of a sentence (e.g. a 

45-year sentence with no provision for obtaining early release

based on a demonstration of maturity and rehabilitation 

before the expiration of the imposed term, such as in Kelsey). 

Secondly, we must ensure that a juvenile nonhomicide 

offender who is sentenced post-Henry does not receive a 

sentence which includes early release that is not based on a 

demonstration of rehabilitation and maturity (i.e. gain time or 

other programs designed to relieve prison overpopulation). 

Last, we must ensure that a juvenile nonhomicide offender 

who is sentenced post-Henry does not receive a sentence that 

provides for early release at a time beyond his or her natural 

life (e.g. a 1,000-year sentence that provides parole-eligibility 

after the offender serves 100 years). To qualify as a 

“meaningful opportunity for early release,” a juvenile 

nonhomicide offender’s sentence must meet each of the three 

parameters described in Henry.

Significantly, the court noted that the State in its answer brief in Johnson 

conceded that the length of sentence was not controlling. “The State 

argues that it is not the length of the sentence given, but rather whether 
9

the juvenile offender will have some meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.” Id. The court 

reiterated that the length of sentence was not the controlling factor:

Further, we previously acknowledged that the length of the 

sentence alone was not dispositive in Kelsey when we said 

that Kelsey's “sentence was unconstitutional not because of 

the length of his sentence, but because it did not provide him 

a meaningful opportunity for early release based on 

maturation and rehabilitation” during his natural life. Kelsey, 

206 So.3d at 11.

Id. Most recently, the court again addressed the issue in Lee v. State. Lee 

was serving a forty-year sentence for a nonhomicide crime. 234 So. 3d at 

563. The court recited the three factors listed in Johnson to consider 

whether the defendant required resentencing and held that “Lee’s sentence 

does not provide him an opportunity to obtain early release based on a 

demonstration of maturity and rehabilitation before the expiration of the 

imposed term. Accordingly, Lee is entitled to resentencing under the 

juvenile sentencing provisions in chapter 2014–220.” Id. at 564. In other 

words, it is the opportunity for early release based on a demonstration of 

maturity which is required.

We have already applied the analysis of Kelsey and Johnson to a 

juvenile who received a thirty-five-year sentence in Andrevil v. State, 226 

So. 3d 867, 871 (Fla. 4th DCA 2017), concluding it was not the length of 

sentence alone but the requirement that a juvenile have the opportunity 

for early release based upon maturation, and thus early judicial review, 

which is necessary:

Based on Johnson II and the rationale underlying Henry and 

Kelsey, we conclude that appellant must be afforded periodic 

review under chapter 2014–220, Laws of Florida. Johnson II

stated that its holding in Henry “was not predicated on the 

term of the sentence, but on the status of, and the opportunity 

afforded, the offender.” 215 So. 3d at 1240. Johnson II noted 

that the length of the sentence alone is not dispositive because 

“any term of imprisonment for a juvenile is qualitatively 

different than a comparable period of incarceration is for an 

adult.” Id. at 1239–40 (citing Henry, 175 So. 3d at 680).

Id. As noted in the majority opinion, other courts have held that sentences 

in excess of twenty years require resentencing pursuant to Kelsey and 

Johnson.
10

The majority also mentions several juvenile cases in which the supreme 

court has declined to exercise discretionary jurisdiction where the juvenile 

was not resentenced and had a sentence of thirty years or greater. 

Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015), rev. denied, 

No. SC15-1325, 2017 WL 24657 (Fla. Jan. 3, 2017) (Pariente, J., 

dissenting) (involving twenty-five year sentence for non-homicide offenses); 

Hill v. State, 172 So. 3d 491 (Fla. 1st DCA 2015), rev. denied, No. SC15-

1667, 2017 WL 24659 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) 

(involving thirty-five-year sentence for non-homicide offenses); McCullum 

v. State, 173 So. 3d 1056 (Fla. 1st DCA 2015), rev. denied, No. SC15-1770 

2017 WL 24756 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving 

aggregate fifty-year sentence for non-homicide offenses). I cannot explain 

why the supreme court would not exercise jurisdiction in those cases, 

although the underlying decisions were all rendered prior to the decisions 

in Kelsey and Johnson. If the court is actually determining that juvenile 

sentences less than forty or forty-five years do not require resentencing, 

then the court should revisit its ruling in Kelsey.

For these reasons, I would follow Kelsey, Johnson, and Lee and reverse 

for resentencing consistent with these cases. 

GROSS, TAYLOR and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.