FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-191

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LESTER SIMMONS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Jan Shackelford, Judge.

May 16, 2019

ROWE, J.

In 1967, Lester Simmons was convicted for the rape of an 

adult woman. He was fifteen years old when he committed the 

offense. Simmons pleaded guilty in exchange for the prosecutor’s 

agreement not to recommend a sentence of death.1 The victim

 1 At the time, the death penalty could be imposed for the 

offense. Ten years later, the United States Supreme Court held 

that a sentence of death for rape of an adult woman was 

unconstitutional. Coker v. Georgia, 433 U.S. 584 (1977). Then in 

2005, the Court held unconstitutional the imposition of the death 

penalty on an offender who was under the age of eighteen when he 

committed the offense. Roper v. Simmons, 543 U.S. 551 (2005). 
2

testified at the sentencing hearing that Simmons surreptitiously 

entered her home and raped her. The trial court sentenced 

Simmons to life with the possibility of parole. 

For Simmons, the possibility of parole was realized—he was 

granted parole twice and spent nearly eighteen years on parole, 

before his parole was revoked for a second time. Then, in 2016, 

almost fifty years after his sentence became final, Simmons moved 

for postconviction relief under Florida Rule of Criminal Procedure 

3.800(a). Simmons argued that his sentence violated the Eighth 

Amendment prohibition against cruel and unusual punishment,

relying on Graham v. Florida, 560 U.S. 48 (2010), and Atwell v. 

State, 197 So. 3d 1040 (Fla. 2016). In Graham, the United States 

Supreme Court held that it was a violation of the Eighth 

Amendment to sentence a juvenile to life imprisonment without 

the possibility of parole for a nonhomicide offense because 

juveniles were entitled to a “meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.” 

Graham, 560 U.S. at 75. The Supreme Court extended this 

reasoning to juveniles sentenced to a mandatory term of life 

imprisonment for a homicide offense. Miller v. Alabama, 567 U.S. 

460, 479 (2012). In Atwell, the Florida Supreme Court relied on 

Graham and Miller to hold that a juvenile homicide offender’s 

sentence of mandatory life imprisonment with the possibility of 

parole was unconstitutional because Florida’s parole system did 

not provide for the individualized consideration of a juvenile’s 

demonstrated maturity and rehabilitation. Atwell, 197 So. 3d at 

1048-50.

Simmons argued that his sentence of life with the possibility 

of parole did not afford him a meaningful opportunity for release 

based on a demonstration of his maturity and rehabilitation. The 

postconviction court ordered the State to respond to Simmons’ 

motion. The State responded, conceding that Atwell entitled

Simmons to resentencing. The court granted Simmons’ motion

and ordered resentencing under the juvenile sentencing provisions

enacted in chapter 2014-220, Laws of Florida, which have been 

codified in sections 775.082, 921.1401, and 921.1402, Florida 

Statutes. 
3

But before resentencing occurred, the court learned of changes 

in the law casting doubt on whether Simmons should be 

resentenced. In Currie v. State,2 this Court held that a sentence of 

life with the possibility of parole, like the one Simmons received, 

was not the functional equivalent of a life sentence without the 

possibility of parole when the defendant was in fact released on 

parole. 219 So. 3d 960, 960 (Fla. 1st DCA 2017). We concluded 

that Currie was not entitled to resentencing under Atwell. Currie, 

219 So. 3d at 960. 

After being advised of Currie, the postconviction court 

directed the parties to address whether Simmons’ sentence was 

lawful. The court heard arguments from the parties and 

determined that Simmons’ sentence of life with the possibility of 

parole was permissible under Currie and similar intervening 

decisions by other district courts.3 Seven months after granting 

Simmons’ postconviction motion, the court entered an order 

rescinding its original order and denying the motion. Simmons 

appealed the second order, arguing that he was entitled to 

resentencing. We agree. 

Because the order granting resentencing became final when 

neither party moved for rehearing or appealed the order, the trial

court had no authority to enter a second order rescinding the 

original order. This Court has twice held that an order on a motion 

for postconviction relief is final and appealable even when 

resentencing has not occurred. See Slocum v. State, 95 So. 3d 911 

(Fla. 1st DCA 2012); Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 

 2 A year later, a plurality of Florida’s supreme court reached 

the same conclusion. State v. Michel, 257 So. 3d 3 (Fla. 2018) 

(holding that a juvenile’s life sentence with the possibility of parole 

after twenty-five years’ imprisonment was not cruel and unusual 

punishment). 

3 Vennissee v. State, 235 So. 3d 947 (Fla. 3d DCA 2017); Wright 

v. State, 225 So. 3d 360 (Fla. 1st DCA 2017); Rooks v. State, 224 

So. 3d 272 (Fla. 3d DCA 2017); Rodgers v. State, 223 So. 3d 281 

(Fla. 4th DCA 2017). 
4

2012). And the supreme court has agreed. See Taylor v. State, 140 

So. 3d 526 (Fla. 2014). 

In Jordan, we addressed for the first time whether a 

postconviction order granting resentencing is final when

resentencing has not yet occurred. There, the postconviction court 

granted Jordan’s rule 3.800(a) motion and ordered resentencing. 

Jordan, 81 So. 3d at 596. But the judge passed away before 

resentencing the defendant. Id. Seventy-seven days after the 

order granting relief was entered, the State moved for 

reconsideration of the order. Id. A successor judge reconsidered

the order and denied the motion. Id. On appeal, because the 

motion for reconsideration was untimely, this Court held that the

order granting resentencing was final and the successor judge 

lacked jurisdiction to reconsider it. Id. 

We next considered the finality of a postconviction order in 

Slocum. There, the court denied Slocum’s postconviction challenge 

to his convictions while granting resentencing. Slocum, 95 So. 3d 

at 912. The court appointed counsel to represent Slocum at a 

resentencing hearing that occurred more than thirty days after the 

court granted Slocum’s postconviction motion. Id. After 

resentencing, a timely notice of appeal was filed. Id. Slocum’s pro 

se notice reflected that he was appealing the portion of the court’s

order that denied the challenges to his convictions. Id. In 

conformity with his notice of appeal, the initial brief challenged 

only the summary denial of a claim for postconviction relief, not 

the resentencing. Id. Relying on Jordan, we determined that the 

court’s order on the postconviction motion became final when

neither party moved for rehearing. Id. at 913. Because Slocum 

did not appeal within thirty days of the date the postconviction 

order was entered and because the initial brief did not challenge 

the resentencing, this Court dismissed the appeal for lack for 

jurisdiction. Id. 

More recently, the supreme court, in Taylor, accepted review 

of a case from the Fifth District that conflicted with Slocum. 

Taylor, 140 So. 3d at 527. The question presented was “whether 

an order disposing of a postconviction motion which partially 

denies and partially grants relief is a final order for purposes of 

appeal, when the relief granted requires subsequent action in the 
5

underlying case, such as resentencing.” Id. The supreme court 

answered the question in the affirmative, holding that unlike an 

order denying a claim in a postconviction motion and granting an 

evidentiary hearing on a different claim, an order denying relief in 

part and granting it in part is a final, appealable order because it 

marks the end of judicial labor on the postconviction motion. Id.

at 528-29. The court rejected the State’s argument that 

“permitting a postconviction appeal to proceed separately from a 

resentencing appeal will encourage piecemeal litigation because, 

as we have previously explained in other cases, postconviction 

proceedings and resentencing proceedings are separate, legally 

discrete proceedings.” Id. at 529. The supreme court held that an 

“order partially denying and partially granting a motion for 

postconviction relief was a final appealable order, even though 

resentencing remained to be completed in the underlying case.” Id. 

Simmons argues that the postconviction court lacked 

jurisdiction to rescind its order granting Simmons’ postconviction 

motion. The State concedes that the original order was a final, 

appealable order. But the State contends that the lower court 

could still revisit its ruling on the postconviction motion because 

Florida Rule of Criminal Procedure 3.192 provides: “Nothing in 

this rule precludes the trial court from exercising its inherent 

authority to reconsider a ruling while the court has jurisdiction of 

the case.” This reading of the rule overlooks the preceding 

sentence that expressly provides that the rule does not apply to 

rule 3.800(a) proceedings. Fla. R. Crim. P. 3.192. Because

Simmons sought postconviction relief under rule 3.800(a), rule 

3.192 did not authorize the postconviction court to reconsider its 

earlier ruling. 

The order granting Simmons’ postconviction motion was a 

final, appealable order because it brought an end to the judicial 

labor on the motion. Taylor, 140 So. 3d at 528-29; Slocum, 95 So. 

3d at 912; Jordan, 81 So. 3d at 596. The finality of the order was 

not delayed because neither party moved for rehearing or 

reconsideration of the order. See Fla. R. Crim. P. 3.800(b)(1)(B) 

(authorizing either party to file a motion for rehearing within 

fifteen days of the service of a signed, written order entered under 

rule 3.800(a)). Nor did either party appeal the order. Because the 
6

original order was final, the trial court lacked jurisdiction4 to enter 

a second order rescinding the original order and denying 

resentencing. We thus quash the order on appeal and remand with 

directions that the trial court reinstate the order granting 

Simmons’ rule 3.800(a) motion. The trial court should then 

resentence Simmons to a lawful sentence. Simmons urgues us to 

direct the court on remand to conduct a de novo resentencing under 

chapter 2014-220, Laws of Florida. Because the postconviction 

court did not previously rule on the proper sentence to be imposed

at resentencing, we decide only the jurisdictional issue before us. 

QUASHED and REMANDED with directions.

KELSEY, J., concurs; BILBREY, J., concurring with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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BILBREY, J., concurring.

I agree with the majority that the order on appeal must be 

reversed. Under existing case law, as discussed by the majority 

opinion, the trial court was unable to rescind the March 2017 

resentencing order once the order became final. The fact that the 

December 2017 order appears to me to be a correct statement of 

the law does not change the consideration. 

 4 The jurisdictional defect here is procedural in nature, not one

affecting the court’s subject matter jurisdiction. See 14302 Marina 

San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320, 

321 (Fla. 1st DCA 2012) (Ray, J. concurring) (discussing the 

distinctions among subject matter jurisdiction, case jurisdiction, 

continuing jurisdiction, and procedural jurisdiction). 
7

I write separately to note that when Simmons is resentenced, 

“the decisional law effective at the time of the resentencing 

applies.” State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Unless 

the law changes before resentencing, the current decisional law is 

that the Eighth Amendment is not violated when a defendant 

sentenced for a nonhomicide offense committed as a juvenile has 

an opportunity for parole. See Franklin v, State, 258 So. 3d 1239, 

1241 (Fla. 2018). This is especially so where an offender, like 

Simmons, “was afforded a meaningful opportunity to obtain 

release and, in fact, was released on parole.” Currie v. State, 219 

So. 3d 960, 960 (Fla. 1st DCA 2017). I therefore believe that the 

trial court can, if it chooses, legally reimpose the same sentence. 

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Andy Thomas, Public Defender, and Glen P. Gifford, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera, Assistant 

Attorney General, Tallahassee, for Appellee.