NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT ROBERT HOWARD, ) ) Appellant, ) ) v. ) Case No. 2D14-4411 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed December 9, 2015. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Reinaldo Ojeda, Judge. Robert Howard, pro se. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee. Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM. Affirmed. See Atwell v. State, 128 So. 3d 167 (Fla. 4th DCA 2 013), rev. granted, 160 So. 3d 892 (Fla. 2014). CASANUEVA and SLEET, JJ., Concur. ALTENBERND, J., Concurs with opinion.-2- ALTENBERND, Judge, Concurring. I agree that Mr. Howard's appeal of the trial court's order de nying his motion pursuant to Florida Rule of Criminal Procedure 3.800(a) may be controlled by the decision in Atwell v. State, 128 So. 3d 167, 168 (Fla. 4th DCA 2013), rev. granted, 160 So. 3d 892 (Fla. 2014). However, Mr. Howard's story is ext raordinary and is worth telling. He is serving parole-e ligible life sentences for a mu rder and a burglary that he committed on August 4, 1981, when he was seventeen. We conclud e that his sentences are not illegal. However, in light of the recent sta tutory amendments in Chapter 2014-200, Laws of Florida, which the supreme court has applied retroactively to juveniles serving life sentences without the possibility of parole for more recent offenses, he may be entitled to a new parole hearing at which c riteria comparable to the new laws are applied to his case. Under the new criteria, he m ay have a much better chance to achieve parole. But t hese are not issues we can reso lve in this appeal.

I. MR. HOWARD'S STORY Mr. Howard was born on December 10, 1963. A few months before his eighteenth birthday, between August 4 and August 6, 1981, he co mmitted five serious crimes. On August 4, along with another man, he committed an u narmed robbery, a burglary with an assault, and a first-degree murder of a sixty- nine-year-old woman. A day later, he committed an unarmed robbery. On August 6, he co mmitted a burglary of a dwelling or occupied conveyance . The circumstances of these offenses are unknown-3- to this court, but there is no denying that such a collection o f offenses, even at such a young age, is a very bad start for his story. In 1982, Mr. Howard was sentenced for all of these offenses. For the murder and the burglary with an assault, he received life in pr ison with the possibility of parole after twenty-five years. For the other offenses, he rec eived fifteen-year sentences of incarceration that have now been fully served. Mr. Howard was sent to prison thirty-three years ago. He wil l turn fifty-two years of age this year. He became parole eligible in about 200 7. According to his motion, he has been denied parole on three occasions. He has a presumptive parole release date in 2054, when he will be ninety-one if he somehow survives to that age. To this point, these facts are harsh, but they are not necessar ily unusual or even noteworthy. After all, Mr. Howard committed some terrible crim es. But the story has a

twist. In his file, and attached to his motion, is a memorandum from his classification officer at the Florida Department of Corrections , dated March 10, 2010. In the twenty-five years prior to that memorandum, Mr. Howard neve r had a disciplinary report as a prisoner. For those unfamiliar with prison discipl ine, that is an extraordinary feat. I confess that I probably could not achieve that record if imprisoned for twenty-five

years. Mr. Howard has earned his GED . He worked for Pride Industries , earning certificates as a forklift operator, a forklift trainer, and a shipping and receiving controller. Prior to 2005, M r. Howard earned nineteen other ce rtificates—at least eleven-4- of which would qualify him for jobs on the outside. Between 20 05 and 2010, he earned certificates in five more categories. In the memorandum, the classification officer states: "During my years as a classification officer, I have not seen many individuals as d edicated to rehabilitation as inmate Howard. He always carries himself in a positive manner, respects both officer and inmate alike, and he continuous ly betters himself by learni ng new trades and participating in self-betterment programs." The classification officer concludes: "I believe he is rehabilitated and would be a very good candidate for parole."

II. THE EVOLVING LAW APPLICABLE TO MR. HOWARD The law concerning adult sentencing of juveniles is currently undergoing substantial change. In 2012, the U nited States Supreme Court h eld that it is unconstitutional for a state to mandate, as a sentence applicab le to all juvenile offenders, a sentence of life without the possibility of parole ; such a sentence can only be imposed with individualized consideration. Miller v. Alabam a, 132 S. Ct. 2455, 2469 (2012). Because the Florida legislature eliminated parole-elig ible life sentences for murder in the mid-1990s, when Miller became the law, Florida ne eded to revise its laws for future cases. The revisions were made during the 2014 legi slative session. Ch. 14- 220, § 3 at 2873, Laws of Fla. The bulk of those revisions are now codified as sections 921.1401 and 921.1402, Florida Statutes (2014). The revisions create a system under which a juvenile's sentence is given individualized considerati on at the time of sentencing and later may be reviewed by the trial court rather than by an administrative board. During that review, which occurs after twenty-five year s in some cases of murder, the trial court is to consider the following factors:-5- (a) Whether the juvenile offender demonstrates maturity and rehabilitation. (b) 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. (c) The opinion of the victim or the victim's next of kin. The absence of the victim or the victim's next of kin from the sentence review hearing may not be a factor in the determination of the court under this section. The court shall permit the victim or victim's next of kin to be heard, in person, in writing, or by electronic means. If the victim or t he victim's next of kin chooses not to participate in the hearing, the court may consider previous statements made by the victim or the victim's next of kin during the trial, initial sentencing phase, or subsequent sentencing review hearings. (d) Whether the juvenile offender was a relatively minor participant in the criminal offense or acted under extreme duress or the domination of another person. (e) Whether the juvenile offender has shown sincere and sustained remorse for the criminal offense. (f) Whether the juvenile offender's age, maturity, and psychological development at the time of the offense affected his or her behavior. (g) Whether the juvenile offender has successfully obtained a high school equivalency diploma or completed another educational, technical, work, voc ational, or self-rehabilitatio n program, if such a program is available. (h) Whether the juvenile offender was a victim of sexual, physical, or emotional abuse before he or she committed the offense. (i) The results of any mental health assessment, risk assessment, or evaluation of the juvenile offender as to rehabilitation. § 921.1402(6), Fla. Stat. (2015).-6- After Miller was decided, it was unclear whether that decision would apply retroactively to juveniles who had received sentences of life w ithout the possibility of parole in the past. The Supreme Court of Florida recently deci ded that it does. Falcon v. State, 162 So. 3d 954, 956 (Fla. 2015). The court also rece ntly decided that juvenile

offenders whose sentences are unconstitutional under Miller sho uld be resentenced. Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015). In so holdi ng, the court needed to devise a method to implement the holding in Miller to these ear lier cases. The method it selected was to adopt the provisions of Chapter 2014-220 for us e with the earlier

defendants. Id. at 405-06. But Mr. Howard has been sentenced to life with parole, which is not illegal under Miller. Thus, Horsley does not have direct application t o him. But the argument that he presents in his motion and on appeal may still be corre ct either as a matter of law or good public policy.

Mr. Howard reasons that the criteria that have been used to de ny him parole—and to deny parole to other prisoners similarly situated —are harsher than the criteria that will now be used for the release of prisoners wit h the benefit of Horsley. Essentially, he believes that he is being denied equal protecti on of the law because

more favorable rules for releas e are applied to prisoners sente nced more recently than he was. Mr. Howard maintains that if persons who committed ser ious crimes as juveniles should be given the benefit of more favorable rules f or release that emphasize their youthfulness at the time of the offense and their efforts at rehabilitation while in prison, then those rules should apply to all such prisoners and not merely to those who-7- happened to be sentenced to life after parole was abolished in this state. The logic of his argument is entirely reasonable. But a claim of illegal sentence is not the method to make this challenge. There may be more than one way for him to make this challenge. Section 947.165, Florida Statutes (2014), requires the Florida Commission on Off ender Review to develop and implement objective parole guidelines as the criter ia on which parole decisions are made. Our record does not reflect whether the gu idelines applicable at the time of Mr. Howard's last hearing included criteria compara ble to those now used by

circuit courts under section 921.1402. 1 If the objective parole guidelines were deficient in this manner, then Mr. Howard ought to be able to make a requ est for a new hearing, perhaps as an extraordinary review, 2 before the Florida Commission on Offender Review, asking the commission for a rehearing using comparable standards. If that request is rejected, an action in the circuit court of Leon Cou nty seeking a declaratory judgment to determine whether Mr. Howard is entitled to the ben efit of the new criteria might be appropriate. Although Mr. Howard may stand out for hi s exceptional record in prison, he is likely to be one of a number of prisoners who hav e been denied parole while serving sentences of life with the possibility of parole under guidelines that did not

1 It should be noted that the twenty-five-year review under secti on 921.1402 is not available for certain prisoners who had already committed serious offenses before they committed murder. See 921.1402(2)(a), Fla . Stat. (2015). Nothing in our record indicates that this is a circumstance that would prevent Mr. Howard from obtaining a review. Even his subsequent offenses in August 198 1 were less serious offenses that would not appear to disqualify him from considera tion if his offenses had been committed more recently.

2 See Fla. Admin. Code R. 23-21.0161 (explaining the procedure fo r extraordinary interviews to determine parole release).-8- take into consideration their youthfulness at the time of the o ffense. Thus, the resolution of this issue may affect a larger group of prisoners

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