Supreme Court of Florida

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No. SC14-416

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CHARLES LEE, 

Petitioner,

vs.

STATE OF FLORIDA, 

Respondent.

[January 25, 2018]

QUINCE, J.

Charles Lee seeks review of the decision of the Second District Court of 

Appeal in Lee v. State, 130 So. 3d 707 (Fla. 2d DCA 2013), on the ground that it 

expressly and directly conflicts with a decision of another district court of appeal 

on a question of law.1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

 

1. The Second District Court of Appeal denied Lee’s claim citing Walle v. 

State, 99 So. 3d 967 (Fla. 2d DCA 2012), quashed, 41 Fla. L. Weekly S455 (Fla. 

Sept. 21, 2016), which was pending review at this Court. 
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STATEMENT OF THE CASE AND FACTS

The facts of this case were provided in the Second District’s decision as 

follows:

On the evening of November 21, 1999, Mr. Lee was on a street 

and got into a disagreement with two people who were in a van 

attempting to purchase cocaine. The nature of the disagreement is not 

entirely clear, but there is evidence that Mr. Lee thought he was owed 

forty dollars. Mr. Lee threatened to shoot the driver if he drove away. 

When the driver attempted to leave, Mr. Lee carried through with his 

threat. He shot the driver, who sustained permanent, disabling 

injuries. Mr. Lee was fifteen years old at the time of these events.

The State filed an information charging Mr. Lee as an adult 

with attempted murder in the first degree. The information alleged 

that he “did attempt to kill and murder and inflict upon [the victim] 

mortal wounds by shooting with a firearm.” The testimony at trial 

included testimony from the treating physician about the gunshot 

wound and the extent of the injury. The jury returned a verdict 

finding Mr. Lee guilty of attempted first-degree murder with a firearm 

as charged in the information.

Lee v. State, 130 So. 3d at 708-09.

Lee was originally sentenced to life imprisonment on April 20, 2001. 

Because section 775.087, Florida Statutes (2000),

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applied, the trial court classified 

the offense as a life felony and sentenced Lee to life without parole. Id. at 709. 

After the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 

48 (2010), Lee filed a motion to correct illegal sentence, which the trial court 

granted. Id. At the conclusion of resentencing in 2011, a successor trial judge 

 

2. Section 775.087 is known colloquially as the 10-20-Life statute.
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sentenced Lee to forty years’ imprisonment with a twenty-five year minimum 

mandatory sentence. Id. 

On appeal to the Second District Court of Appeal, the district court held that 

Lee’s newly imposed sentence did not violate Graham. Lee, 130 So. 3d at 710 

(citing Walle v. State, 99 So. 3d 967 (Fla. 2d DCA 2012), quashed, 41 Fla. L. 

Weekly S455 (Fla. Sept. 21, 2016)). The Second District denied Lee’s remaining 

claims. Id. 

DISCUSSION

Lee raises four issues in this review proceeding.

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 Because the first issue in 

this case is entirely controlled by this Court’s decisions in Kelsey v. State, 206 So. 

3d 5 (Fla. 2016), and Johnson v. State, 215 So. 3d 1237 (Fla. 2017), Lee is entitled 

to be resentenced. 

In Kelsey, this Court stated:

After we made clear that Graham does indeed apply to term-ofyears sentences, we have declined to require that such sentences must 

be “de facto life” sentences for Graham to apply. See, e.g., Guzman 

v. State, 183 So. 3d 1025, 1026 (Fla. 2016). By using chapter 2014-

220 as a guide, we avoid second-guessing the legislative 

contemplation that resulted in the twenty-year cutoff for judicial 

 

3. Lee argues: (1) that he is entitled to be resentenced pursuant to chapter 

2014-220, Laws of Florida; (2) that the trial court is required to consider an 

updated presentence investigation report (PSI); (3) that a minimum mandatory 

sentence under section 775.087, Florida Statutes, is unconstitutional as applied to 

him; and (4) that the trial court erred in imposing the 25-year minimum mandatory 

term because the information did not allege great bodily harm.
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review contained in the law. . . . Because we determine that 

resentencing is the appropriate remedy, the trial courts may embrace 

all of the provisions of chapter 2014-220 and are not required to limit 

themselves to only applying the judicial review provision. 

Kelsey v. State, 206 So. 3d at 10-11. Following Kelsey, this Court issued a 

decision in Johnson, holding:

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.

Johnson, 215 So. 3d at 1243 (discussing Henry v. State, 175 So. 3d 675 (Fla. 

2015)).

Lee, as was Kelsey, is serving a 40-year sentence for a nonhomicide crime 

that he committed when he was a juvenile. Like Kelsey, Lee was resentenced after 

the United States Supreme Court’s decision in Graham but before the Florida 

Legislature passed chapter 2014-220. And, like Kelsey—and as noted in 

Johnson—Lee’s sentence does not provide him an opportunity to obtain early 
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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.

We find Lee’s second claim without merit. The trial court may, but is not 

required to under the rule or statute, order an updated PSI. See Fla. R. of Crim. P.

3.710(a); § 985.565(3)(c), Florida Statutes (2017); see, e.g., Barber v. State, 293 

So. 2d 710, 711 (Fla. 1974) (“The requirement of [Florida Rule of Criminal 

Procedure] 3.710 does not continue or revive upon a second, future occasion of an 

adjudication of guilt and sentencing for violation of the probation earlier granted 

which had already fulfilled the mandate of the rule.”). Furthermore, because Lee is 

entitled to be resentenced under the provisions of chapter 2014-220, we decline to 

address the remaining issues on appeal.

It is so ordered.

LABARGA, C.J., and PARIENTE, J., concur.

LEWIS, J., concurs in result.

POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., 

concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

POLSTON, J., dissenting.

Unlike the majority, I believe that a juvenile nonhomicide offender’s 

sentence must violate Graham v. Florida, 560 U.S. 48 (2010), in order for that 
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defendant to be entitled to resentencing pursuant to Graham. See Kelsey v. State, 

206 So. 3d 5, 14 (Fla. 2016) (Polston, J., dissenting). Here, because Lee’s 40-year 

sentence is not a life sentence or a de facto life sentence, his sentence does not 

violate Graham. See Graham, 560 U.S. at 82. Therefore, Lee is not entitled to 

resentencing. I respectfully dissent.

CANADY and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct 

Conflict of Decisions 

Second District - Case No. 2D11-2163 

(Pasco County)

Howard L. “Rex” Dimmig, II, Public Defender, and Matthew D. Bernstein, 

Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Marilyn Muir Beccue,

and Cerese Crawford Taylor, Assistant Attorneys General, Tampa, Florida,

for Respondent