IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

DARRIUS MONTGOMERY,

Appellant,

v. Case No. 5D14-3615

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed November 9, 2017

Appeal from the Circuit Court 

for Orange County,

Renee A. Roche, Judge.

James S. Purdy, Public Defender, and Susan 

A. Fagan, Assistant Public Defender, Daytona 

Beach, for Appellant.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Rebecca Rock McGuigan, 

Assistant Attorney General, Daytona Beach, 

for Appellee.

ORFINGER, J.

Darrius Montgomery, seventeen years old at the time he committed his offenses, 

was convicted of attempted robbery with a firearm, aggravated assault with a firearm, 

aggravated battery with a firearm, and attempted felony murder with a firearm. On each 

count, the jury found that he discharged a firearm resulting in great bodily harm but not 

death. Montgomery was later sentenced to twenty-five years’ imprisonment with twenty-
2

five-year mandatory minimum terms for the attempted robbery and aggravated battery 

offenses, twenty years’ imprisonment with a twenty-year mandatory minimum term for the 

aggravated assault, and thirty years’ imprisonment with a twenty-five-year mandatory 

minimum term for the attempted felony murder. All sentences were imposed pursuant to 

the 2012 version of the 10-20-Life statute, section 775.087(2), Florida Statutes, and 

ordered to be served concurrently. 

While his appeal was pending, Montgomery filed a timely motion to correct 

sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that he is a 

juvenile offender and entitled to a juvenile sentencing hearing and judicial review hearing 

in accordance with the procedures outlined in chapter 2014–220, Laws of Florida, codified 

in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014), for the attempted 

robbery, aggravated battery, and attempted felony murder convictions. The trial court 

agreed in part, and ordered a new sentencing hearing for those three convictions. After 

the hearing, the State submitted a memorandum of law, conceding that Montgomery was 

entitled to a review of his sentence after twenty years pursuant to section 921.1402(2)(d).1 

The trial court then entered an order granting review of Montgomery’s sentences after 

twenty years but did not issue amended sentencing orders. Montgomery filed a second 

rule 3.800(b)(2) motion, asking the court to vacate his sentences for those three 

convictions and to hold a juvenile sentencing hearing under section 775.082(3)(c), and 

make the necessary findings in accordance with sections 921.1401 and 921.1402 that he 

is a juvenile offender and entitled to a sentencing review hearing after twenty years. 

 

1 On appeal, without explanation, the State reverses course and broadly argues 

that Montgomery’s sentence does not violate the Eighth Amendment and that he is not 

entitled to be sentenced under the provisions of Chapter 2014-220.
3

Montgomery also asked the court to vacate the mandatory minimum sentences imposed 

under section 775.087(2) on all four of his convictions, arguing that, as to juveniles, the 

2014 juvenile sentencing statutes supersede the mandatory minimum sentences required 

by section 775.087(2). The trial court disagreed, rescinded its earlier order, and held that 

Montgomery was not entitled to a review hearing after serving twenty years. 

On appeal, Montgomery argues that he is entitled to resentencing as his sentences 

violate the Eighth Amendment to the United States Constitution and that the 10-20-Life 

statute no longer applies to juvenile offenders tried and convicted as adults. We agree in 

part and reverse. The legality of a sentence is a question of law, and thus, subject to de 

novo review. Pinkard v. State, 185 So. 3d 1289, 1289-90 (Fla. 5th DCA 2016). Similarly, 

our review of the constitutionality of a sentence is de novo. Peterson v. State, 193 So. 

3d 1034, 1038 (Fla. 5th DCA 2016).

The unsettled state of juvenile sentencing for nonhomicide offenders began with 

Graham v. Florida, 560 U.S. 48 (2010), when the Supreme Court held that the United 

States Constitution prohibits the imposition of a life without parole sentence on a juvenile 

offender who did not commit a homicide. The Court explained that a state is not required 

to guarantee the juvenile offender eventual release, but if it imposes a life sentence, it 

must provide the juvenile with some realistic opportunity to obtain release before the end 

of that term. Following Graham, a unanimous Florida Supreme Court held that “the 

constitutional prohibition against cruel and unusual punishment under Graham is 

implicated when a juvenile nonhomicide offender's sentence does not afford any 

‘meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation.’” Henry v. State, 175 So. 3d 675, 679 (Fla. 2015) (quoting Graham, 560 
4

U.S. at 75). In reaching this holding the Florida Supreme Court reasoned that the 

“Supreme Court's long-held and consistent view that juveniles are different” supported 

the conclusion that “the specific sentence that a juvenile nonhomicide offender receives 

for committing a given offense is not dispositive as to whether the prohibition against cruel 

and unusual punishment is implicated.” Id. at 680. Accordingly, it determined that 

Graham was intended to ensure that “juvenile nonhomicide offenders will not be 

sentenced to terms of imprisonment without affording them a meaningful opportunity for 

early release based on a demonstration of maturity and rehabilitation.” Id. The holding 

in Henry was not predicated on the length of the sentence, but rather on the status of, 

and the opportunity afforded, the juvenile offender for early release. Johnson v. State, 

215 So. 3d 1237, 1240 (Fla. 2017); Henry, 175 So. 3d at 680 (stating that “Eighth 

Amendment will not tolerate prison sentences that lack a review mechanism for 

evaluating [juvenile nonhomicide] offenders for demonstrable maturity and reform in the 

future”). 

In Kelsey v. State, 206 So. 3d 5 (Fla. 2016), the supreme court reiterated its 

reasoning that the constitutionality of a juvenile offender's sentence is not based on the 

length of the sentence, but rather, it is dependent upon whether the sentence provided 

the offender with a meaningful opportunity for early release based on maturation and 

rehabilitation. Id. at 9. Based on its decision in Henry, which it described as 

“unequivocal,” it reaffirmed that all juvenile offenders whose sentences met the standard 

defined by the Legislature in chapter 2014–220, Laws of Florida, which includes any 

sentence longer than twenty years, are entitled to judicial review, not simply those termof-years sentences that are “de facto life.” Id. at 9–11. Thus, the Florida Supreme Court 
5

has “determined that Graham prohibits juvenile nonhomicide offenders from serving 

lengthy terms of incarceration without any form of judicial review mechanism.” Johnson, 

215 So. 3d at 1240. The length of the sentence alone is not dispositive. Rather, the 

Florida Supreme Court has concluded that the Eighth Amendment, as read through 

Graham, requires a review mechanism for nonhomicide juvenile offenders because “any 

term of imprisonment for a juvenile is qualitatively different than a comparable period of 

incarceration is for an adult.” Id. (citing Henry, 175 So. 3d at 680). Our supreme court 

has opined that reading Graham, Henry and Kelsey together requires that juvenile 

nonhomicide offenders receive sentences that provide a meaningful opportunity for early 

release based on demonstrated maturity and rehabilitation during their natural lifetimes. 

Id. at 1239. 

In an effort to comply with Graham, in 2014, the Legislature passed chapter 2014–

220, Laws of Florida, which provided judicial review for juvenile offenders, who were tried 

as adults, and received sentences of more than twenty years' incarceration, with certain 

exceptions. In considering a remedy for a Graham violation, our supreme court 

concluded in Horsley v. State, 160 So. 3d 393, 394-95, 405 (Fla. 2015), that chapter 2014-

220, Laws of Florida, brought Florida's juvenile sentencing statutes into compliance with 

Graham and provided an appropriate remedy for all juvenile offenders whose sentences 

are unconstitutional even when, as here, the juvenile's offense was committed prior to the 

July 1, 2014, effective date of the legislation. See also Falcon v. State, 162 So. 3d 954, 

963 (Fla. 2015). 

Following Graham, Henry and Horsley, this Court in Peterson v. State, 193 So. 3d 

1034 (Fla. 5th DCA 2016), review denied, No. SC16-1211 (Fla. June 23, 2017), explained 
6

that, regardless of whether a juvenile offender’s sentence is a de facto life sentence, a 

lengthy term-of-years sentence that does not afford a nonhomicide juvenile offender a 

meaningful opportunity for early release based on demonstrated maturity and 

rehabilitation violates Graham and the Eighth Amendment, requiring resentencing with 

retroactive application of the 2014 sentencing framework. We concluded that the 

supreme court's admonition that a constitutional sentence is one that provides a 

meaningful opportunity for early release is not satisfied simply because the juvenile may 

be released from prison at some point before the conclusion of his or her life expectancy. 

Peterson, 193 So. 3d at 1038. As a result, we held that Peterson’s fifty-six-year sentence 

could not stand under Graham and its progeny, and remanded for the trial court to 

resentence him under the 2014 juvenile sentencing statutes pursuant to Horsley. Id. at 

1039; see also Burrows v. State, 219 So. 3d 910, 911 (Fla. 5th DCA 2017) (holding 

defendant with concurrent twenty-five-year sentences was entitled to judicial review after 

twenty years); Tyson v. State, 199 So. 3d 1087, 1088 (Fla. 5th DCA 2016) (holding 

defendant with aggregate forty-five-year sentence was entitled to judicial review after 

twenty years). 

Based on these precedents, we agree that the trial court erred in denying 

Montgomery’s rule 3.800(b) motions.

2 We reverse Montgomery’s sentences for 

 

2

 In denying Montgomery’s rule 3.800(b)(2) motions, the trial court did not rely on 

our decision in Peterson, and instead relied on Abrakata v. State, 168 So. 3d 251, 252 

(Fla. 1st DCA 2015), where the First District Court of Appeal concluded that the 

defendant’s twenty-five-year mandatory minimum sentence did not violate Graham. In 

reaching this conclusion, the First District relied on cases that held that forty-five-year and 

fifty-year sentences imposed on juvenile offenders were constitutional because they did 

not amount to a “de facto” life sentence. Abrakata, 168 So. 3d at 252 (citing Austin v. 

State, 127 So. 3d 1286 (Fla. 1st DCA 2013); Thomas v. State, 78 So. 3d 644 (Fla. 1st 

DCA 2011)). The First District’s reliance on these cases seems to contradict Henry, 175 
7

attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony 

murder with a firearm and remand for resentencing in conformance with the 2014 juvenile 

sentencing statutes, which includes the judicial review provided by section 921.1402. 

However, Montgomery is not entitled to resentencing or a review hearing on the 

aggravated assault with a firearm conviction. See Kelsey, 206 So. 3d at 11 (holding 

Graham required judicial review hearings for juvenile offenders who are sentenced to 

terms longer than twenty years). 

Montgomery’s challenge to the imposition of the twenty-five-year mandatory 

minimum prison sentences under section 775.087(2), Florida Statutes (2012), commonly 

known as the 10-20-Life statute, requires us to consider the interplay between the 

mandatory minimum sentences imposed here and the juvenile sentencing scheme, which 

mandates a review hearing with the possibility of early release. The 10–20–Life statute 

provides for mandatory minimum sentences for certain offenses when a defendant 

possesses a firearm (minimum term of imprisonment of either three years or ten years, 

depending on the offense), discharges a firearm (minimum term of imprisonment of 

twenty years), or discharges a firearm and as the result of the discharge, inflicts death or 

great bodily harm (“minimum term of imprisonment of not less than 25 years and not more 

than a term of imprisonment of life in prison”). § 775.087(2)(a)(1)-(3), Fla. Stat. (2012). 

At the same time, under the 2014 juvenile sentencing statutes, a juvenile offender who 

commits a life or first-degree felony punishable by life is entitled to an individualized 

 

So. 3d at 680, which held that the Eighth Amendment “will not tolerate [a juvenile 

offender’s] prison sentence[ ] that lack[s] a review mechanism,” and the later opinion in 

Kelsey, 206 So. 3d 5, which vacated a juvenile offender’s forty-five-year sentence as 

unconstitutional and remanded for resentencing with the benefit of a judicial review. 
8

sentencing hearing under sections 775.082(3) and 921.1401, Florida Statutes (2014). 

And, a juvenile nonhomicide offender “sentenced to a term of 20 years or more under s. 

775.082(3)(c) is entitled to a review of his or her sentence after 20 years.” § 

921.1402(2)(d), Fla. Stat. (2014). Thus, we must determine if a trial court may release a 

juvenile after the twenty-year judicial review even if a portion of the mandatory minimum 

sentence remains. 

We review questions of statutory interpretation de novo. Patrick v. Hess, 212 So. 

3d 1039, 1041 (Fla. 2017). Our goal “is to determine legislative intent.” Crews v. State, 

183 So. 3d 329, 332 (Fla. 2015). To do so, we begin with the plain meaning of the text 

of the statute. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013).

“When the statute is clear and unambiguous, courts will not look behind the statute’s plain 

language for legislative intent or resort to rules of statutory construction to ascertain 

intent.” Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005). The statute’s plain 

and ordinary meaning must control unless this leads to an unreasonable result or a result 

clearly contrary to legislative intent. Id. 

One rule that guides our analysis is “[t]he doctrine of in pari materia . . . [which] 

requires that statutes relating to the same subject or object be construed together to 

harmonize the statutes and to give effect to the Legislature’s intent.” Larimore v. State, 

2 So. 3d 101, 106 (Fla. 2008) (quoting Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768 

(Fla. 2005)). In applying this rule, courts attempt to harmonize potentially conflicting 

statutes, if possible. Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 

2001) (quoting Acosta v. Richter, 671 So. 2d 149, 153-54 (Fla. 1996)). 
9

In 1999, the Florida Legislature enacted the 10-20-Life statute. Section 

775.087(2)(a)3., relevant here, provides for a twenty-five-year mandatory minimum: 

Any person who is convicted of a felony or an attempt to commit a 

felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether 

the use of a weapon is an element of the felony, and during the 

course of the commission of the felony such person discharged a 

“firearm” or “destructive device” as defined in s. 790.001 and, as the 

result of the discharge, death or great bodily harm was inflicted upon 

any person, the convicted person shall be sentenced to a minimum 

term of imprisonment of not less than 25 years and not more than a 

term of imprisonment of life in prison.

(Emphasis added). If a defendant falls within the purview of this statute, the trial court 

must impose a mandatory minimum sentence of twenty-five years under section 

775.087(2)(a)3. Mendenhall v. State, 48 So. 3d 740, 742 (Fla. 2010). 

At the same time, the United States Supreme Court’s jurisprudence regarding 

juvenile sentencing informs us that, as a matter of constitutional law, “children are 

constitutionally different from adults for purposes of sentencing,” and these differences 

are not “crime-specific.” Miller v. Alabama, 567 U.S. 460, 471, 473 (2012); see Graham, 

560 U.S. at 68; Roper v. Simmons, 543 U.S. 551, 572-73 (2005). In recognition of this 

difference and in response to the United States Supreme Court’s decisions, the Florida 

Legislature passed chapter 2014–220 in 2014. See Horsley, 160 So. 3d at 394. The

preamble to this chapter reflects that section 775.082 was amended, and sections 

921.1401 and 921.1402 were created, to change the “criminal penalties applicable to . . . 

juvenile offender[s] for certain serious felonies” and establish “sentence review 

proceedings to be conducted after . . . specified period[s] of time . . . [for] certain offenses” 

committed by offenders under the age of eighteen. The sentencing scheme established 

in chapter 2014-220 provides, in relevant part, that juveniles convicted of nonhomicide 
10

offenses and sentenced to a term of imprisonment of more than twenty years are entitled 

to a review of their sentences after twenty years. §§ 775.082(3)(c), 921.1402(2)(d), Fla. 

Stat. (2014). In reviewing a nonhomicide juvenile’s sentence at twenty years, the 

sentencing court must determine whether a sentence modification is warranted after 

reviewing, among other things, the juvenile offender’s youth and attendant characteristics 

at the time of the offense, whether the juvenile offender demonstrates maturity and 

rehabilitation, and whether the juvenile offender remains at the same level of risk to 

society as he or she did at the time of the initial sentencing. Id. § 921.1402(6).

As the Florida Supreme Court has stated:

It is a well settled rule of statutory construction . . . that a special 

statute covering a particular subject matter is controlling over a 

general statutory provision covering the same and other subjects in 

general terms. In this situation “the statute relating to the particular 

part of the general subject will operate as an exception to or 

qualification of the general terms of the more comprehensive statute 

to the extent only of the repugnancy, if any.”

McDonald v. State, 957 So. 2d 605, 610 (Fla. 2007) (quoting Adams v. Culver, 111 So. 

2d 665, 667 (Fla. 1959)). And, a more recently enacted statute will control over older 

statutes as “[t]he more recently enacted provision may be viewed as the clearest and 

most recent expression of legislative intent.” Palm Beach Cty. Canvassing Bd. v. Harris, 

772 So. 2d 1273, 1287 (Fla. 2000); see also Fla. Virtual Sch. v. K12, Inc., 148 So. 3d 97, 

102 (Fla. 2014). These principles thus require that if there is a conflict, sections 775.082 

and 921.1402, which are more recent and specifically address the criminal penalties and 

sentence review procedures applicable to juveniles convicted of certain serious offenses,

would prevail over section 775.087(2)(a), which is older and is a general sentencing 

statute covering the mandatory minimum for all offenders who, in the course of certain 
11

felonies, discharge a firearm and, as a result of the discharge, cause death or great bodily 

harm.

3

 

We believe these statutes can be harmonized because the juvenile sentencing 

statutes contemplate the modification of any sentence after the mandated judicial review. 

For example, under section 775.082(1)(b)1., a sentencing court is required to impose a 

minimum sentence of forty years to life imprisonment with a twenty-five-year judicial 

review (as long as the juvenile was not previously convicted of a separate criminal 

offense) when sentencing a juvenile convicted of a capital offense with an actual intent to 

kill. The forty-year minimum sentence notwithstanding, if the court determines at a 

sentence review hearing twenty-five years later that the juvenile offender has been 

rehabilitated and is reasonably believed to be fit to reenter society, the court is authorized 

to modify the sentence by releasing the juvenile based on maturity and rehabilitation but 

must impose a term of probation of at least five years. § 921.1402(7), Fla. Stat. (2014). 

This is still true even though section 944.275(4)(f), Florida Statutes (2014), which 

mandates prisoners to serve at least eighty-five percent of the sentence imposed, would 

require the juvenile offender to serve a minimum of thirty-four years. Nonetheless, the 

juvenile offender would be entitled to a judicial review and possible release in twenty-five 

years.

 

3 This Court recently determined that the 2014 juvenile sentencing laws did not 

affect the ten-year mandatory minimum under section 775.087(2). Young v. State, 219 

So. 3d 206, 210-11 (Fla. 5th DCA 2017). That case is distinguishable because no juvenile 

offender is entitled to a review hearing unless his sentence exceeds fifteen years. See § 

921.1402(2)(c), Fla. Stat. (2015). 
12

Reading the juvenile sentencing statutes and the 10-20-Life statute in pari materia, 

the following sentencing scheme emerges for nonhomicide juvenile offenders. Under 

section 775.082(3), the court must provide a nonhomicide juvenile offender, who is 

convicted of certain serious offenses, an individualized sentencing hearing. If the 

nonhomicide juvenile offender is sentenced to more than twenty years, the court must 

provide a judicial review after twenty years, pursuant to section 921.1402(2)(d), to afford 

him or her a meaningful opportunity to obtain early release. However, if the nonhomicide

juvenile offender, in the course of committing certain enumerated felonies, discharged a 

firearm and as the result of the discharge, inflicted death or great bodily harm, the juvenile 

must be sentenced to a twenty-five-year mandatory minimum. § 775.087(2), Fla. Stat. 

(2012). Nonetheless, he or she would still be entitled to a twenty-year statutory review of 

his or her sentence under section 921.1402(2)(d) with the possibility of early release. See

generally Gridine v. State, 175 So. 3d 672, 675 (Fla. 2015) (reversing juvenile 

nonhomicide offender’s aggregate seventy-year sentence with twenty-five-year 

mandatory minimum because it failed to provide defendant with judicial review, and 

thereby, meaningful opportunity for future release). At that judicial review, after 

considering the enumerated factors of section 921.1402(6) along with any other factor it 

deems appropriate to review the juvenile’s sentence, the sentencing court is authorized 

to modify the sentence and impose a term of probation of at least five years if the court 

determines modification is warranted. § 921.1402(7), Fla. Stat. (2014). 

A twenty-five-year mandatory minimum sentence does not implicate the factors 

deemed unacceptable when those penalties are imposed on juveniles, namely, the futility 

of rehabilitation and the permanent deprivation of all hope to become a productive 
13

member of society, both of which occur when the court is prevented from taking a second 

look at the incarcerated offender's demonstrated growth and maturity. Rather, 

irrespective of the twenty-five-year mandatory minimum, a juvenile offender will be able 

to work toward his rehabilitation and look forward to a judicial review after twenty years, 

with an opportunity for release at a relatively young age. Accordingly, we hold that the 

mandatory twenty-five-year minimum sentence at issue in this case does not constitute 

cruel and unusual punishment when applied to a juvenile offender as long as he or she 

gets the mandated judicial review.

We affirm Montgomery’s convictions without further discussion, but reverse his 

sentences and remand for resentencing for the attempted robbery with a firearm, 

aggravated battery with a firearm, and attempted felony murder with a firearm convictions 

in conformance with chapter 2014–220, Laws of Florida, as codified in sections 775.082, 

921.1401, and 921.1402, Florida Statutes (2014). 

AFFIRMED in part; REVERSED in part; and REMANDED. 

TORPY, J., concurs.

EIGNAUGLE, J., concurs in result only, with opinion.
14

 Case No. 5D14-3615

EISNAUGLE, J., concurring in result only, with opinion.

While I commend the diligent work of the majority here, I concur solely because I

am bound by Burrows v. State, 219 So. 3d 910 (Fla. 5th DCA 2017), where this court 

reversed a twenty-five-year sentence of a nonhomicide offender citing to Kelsey v. State, 

206 So. 3d 5, 8 (Fla. 2016).

4

 In this case, Appellant was sentenced to thirty years before 

the Legislature adopted chapter 2014–220, Laws of Florida. Therefore, before this court 

can apply the remedy set forth in chapter 2014–220, we must first determine that 

Appellant’s thirty-year sentence violates the Eighth Amendment. See Henry v. State, 175 

So. 3d 675, 679 (Fla. 2015) (“Because we have determined that Henry’s sentence is 

unconstitutional under Graham, we conclude that Henry should be resentenced in light of 

the new juvenile sentencing legislation . . . .”). Other than Burrows, the cases cited by 

the majority do not hold that Appellant’s thirty-year sentence violates the Eighth 

Amendment. Therefore, were it not for Burrows, I would affirm Appellant’s sentence, and 

would not reach the interplay between sections 921.1402 and 775.087, Florida Statutes 

(2014). 

The majority seems to rely on language from Henry to support its conclusion that 

the Constitution requires review of a thirty-year sentence, but Henry does no such thing. 

In Henry, the supreme court held the juvenile offender’s ninety-year term-of-years 

 

4

I recognize that the opinion in Burrows indicates that the State conceded error. 

In my view, the State should not have done so, and we should have rejected the State's 

concession. See Powell v. State, 223 So. 3d 412 (Fla. 5th DCA 2017) (quoting Perry v. 

State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002)). Although the State initially conceded 

error in this case, it now correctly recognizes that Appellant’s sentence does not violate 

Graham.
15

sentence was unconstitutional because the offender would not have a “meaningful 

opportunity for release.” 175 So. 3d at 676. In so doing, Henry reasoned that “the 

Graham Court had no intention of limiting its new categorical rule to sentences 

denominated under the exclusive term of ‘life in prison.’” Id. at 680. Thus, Henry

considered the constitutionality of a de facto life sentence, and plainly does not require 

this court to find that a thirty-year sentence is unconstitutional. 

The same is true for Horsley5 and Peterson.6 Horsley did no more than announce 

that chapter 2014–220 would serve as the remedy for all juvenile sentences that violate 

Graham, even when the offense was committed before the Legislature adopted chapter 

2014–220. Horsley, 160 So. 3d at 405. I concede that Appellant would be entitled to the 

remedy provided in chapter 2014–220 if his sentence were unconstitutional. Thus, 

Horsley’s holding begs the question presented and is of no consequence here.

In Peterson, this court concluded that a fifty-seven-year sentence without a review 

mechanism violated Graham, even though it did not amount to a “de facto life sentence.” 

Peterson, 193 So. 3d at 1038. Again, however, Peterson does not require the majority’s 

holding today that a thirty-year sentence is also unconstitutional. Just because Florida’s 

courts have concluded that a sentence need not amount to “de facto life” to violate 

Graham, it does not follow that all juvenile sentences require a review mechanism no 

matter their length. Therefore, Peterson’s holding concerning a fifty-seven-year sentence 

is not binding in this case, and I would not extend its reasoning to Appellant’s thirty-year 

sentence.

 

5 Horsley v. State, 160 So. 3d 393 (Fla. 2015).

6 Peterson v. State, 193 So. 3d 1034 (Fla. 5th DCA 2016). 
16

Despite the majority’s background discussion of Henry, Horsley, and Peterson, its 

opinion is really built upon a single sentence in Kelsey. Specifically, today’s decision, and 

the decision in Burrows, centers on Kelsey’s statement "that all juvenile offenders whose 

sentences meet the standard defined by the Legislature in chapter 2014–220, a sentence 

longer than twenty years, are entitled to judicial review." Kelsey, 206 So. 3d at 8. To 

properly understand that single sentence, however, it cannot be read in isolation and must 

be considered in the context of the entire opinion. 

In Kelsey, the supreme court only considered whether a juvenile offender, who had 

already been resentenced once because his original life sentences violated Graham, was 

entitled to a second resentencing and retroactive application of chapter 2014–220’s 

review mechanism. Kelsey, 206 So. 3d at 6. Both the Kelsey court’s holding and 

reasoning illustrate its narrow application. Indeed, in that case the court concluded that 

“[i]t 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.” Id. at 10. The Kelsey opinion 

also observed the defendant in that case “represent[ed] a narrow class of juvenile 

offenders, those resentenced from life to term-of-years sentences after Graham, for 

crimes committed before chapter 2014–220's . . . effective date.” Id. at 10. If that were 

not enough, our supreme court again recognized Kelsey’s narrow application in Johnson 

v. State, when it explained that Kelsey’s holding merely applied “the reasoning in Henry

to juveniles whose life sentences had been vacated pursuant to Graham, but who had 

not been resentenced under the new juvenile sentencing guidelines.” 215 So. 3d 1237, 

1239 (Fla. 2017). In sum, Kelsey did not hold that all juvenile sentences longer than 
17

twenty years are unconstitutional unless they include chapter 2014–220’s review 

mechanism, nor does Kelsey have any bearing on whether Appellant’s thirty-year 

sentence in this case is unconstitutional. 

Nevertheless, although I believe it was wrongly decided, I am bound by Burrows, 

and am now compelled to consider the remedy to which Appellant is entitled after 

demonstrating a violation of Graham. And although I cannot join all of the majority’s 

reasoning, I agree with the majority’s ultimate reading of sections 921.1402 and 775.087, 

which gives meaning to both statutes. That said, if the Legislature disagrees with our 

interpretation of these statutes, I believe it has every constitutional right to revise the 

statutes to clarify its intent.