NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D16-5322 ) KEVIN RATLIFF, ) ) Appellee. ) ___________________________________ ) Opinion filed November 3, 2017. Appeal from the Circuit Court for Pinellas County; William H. Burgess, III, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, A ssistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.

SILBERMAN, Judge. The State seeks review of a postconviction order declaring unconstitutional two life sentences for the crimes of first-deg ree murder and attempted first-degree murder which Kevin Ratliff committed when he was a juvenile. The postconviction court granted reli ef under Miller v. Alabama, 56 7 U.S. 460 (2012), and- 2 - Graham v. Florida, 560 U.S. 48 (2 010), as interpreted in Atwell v. State, 197 So. 3d 1040 (Fla. 2016). The State argues that the court erred by gra nting relief without considering whether, due to the possibility of parole, Ratliff' s life sentences constituted "de facto" life sentences. We reject this argument and affirm. In Miller, the Supreme Court hel d that it was a violation of the Eighth Amendment to impose a mandatory sentence of life without parole for a juvenile. 567 U.S. at 479. In Graham, the Supreme Court held that it was als o unconstitutional to impose a sentence of life withou t parole for a juvenile convict ed of a nonhomicide offense. 560 U.S. at 74-75. In Atwell, the Florida Supreme Co urt held that Miller and Graham also apply in cases in which a defendant sentenced to li fe in prison is eligible for parole in Florida. 197 So. 3d at 1050. The question on appeal is whether, under Atwell, juveniles se rving life sentences with parole eligibility are entitled to relief under Miller and Graham only if their presumptive parole release dates (PPRD) results in their senten ces being "de facto" life sentences. We answer this question in the negative. In Atwell, the juvenile defendant had been convicted of first -degree murder and sentenced to a mandatory term of life in prison with parole eligibility. 197 So. 3d at

1041. The defendant's PPRD was 2130 which the court noted exce eded his life expectancy and virtually ensured he would spend the remainder o f his life in prison. The question before the court was whether the defendant's life sentence was

constitutional under Miller. Id. The court answered this question in the negative, stating, "W e conclude that Florida's existing parole system, as set forth by statute, does not provide for- 3 - individualized consideration of Atwell's juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually i ndistinguishable from a sentence of life without parole, is therefore unconstitutional. " Id. The court explained three reasons for its holding. First, it was consistent with i ts prior cases which followed the spirit of Miller and Graham as opposed to "an overly narrow interpretation." Id. (citing Henry v. State, 175 So. 3d 675 (Fla. 2015), cert. denie d, 136 S. Ct. 1455 (2016)). Second, it was consistent with the mandate in Miller and Grah am that courts sentencing juveniles cons ider how they are different and how those differences mitigate against life sentences. Id. at 1045. The court expla ined that Miller and Graham would not necessarily require resentencing if parole was available for "certain juvenile offenders 'whose crimes reflected only transient immat urity—and who have since matured.' " Atwell, 197 So. 3d at 1048 (quoting Montgome ry v. Louisiana, 136 S. Ct. 718, 736 (2016)). However, Florida's existing parole syste m does not meet this standard because it gives primary consideration to the serious nature of the offense and the defendant's criminal record. Id. at 1049. "Importantly, u nlike other states, there are no special protections expressly afforded to juvenile offenders and no consideration of the diminished culpability of the youth at the time of the offe nse." Id.

The court's third reason for its conclusion was that it was c onsistent with Florida's post-Miller and Graham legislative intent. Id. at 10 42. "Rather than offer parole as a means of complying with the principles established by the Supreme Court, the Florida Legislature chose instead to enact a wholly new and distinct sentencing framework for juvenile offenders, offering term-of-years senten cing options for trial courts and providing for a subsequent judicial review of length y sentences." Id.- 4 - The court thus quashed the decision upholding the defendant's life sentence and remanded for resentencing under chapter 2014-220, Laws of Florida. Id. Under that framework, the juven ile's sentence would be reviewed after twenty-five years by a judge who must consider "among other factors, the juvenile offender's youth and its attendant characteristics at the time of the offense, the opini on of the victim or the victim's next of kin concerning the release of the juvenile off ender from prison, 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. at 1043. In Marshall v. State, 214 So. 3d 776, 777 (Fla. 2d DCA 2017), this court relied on Atwell to hold that a juvenile defendant sentenced to ninety-nine years with parole eligibility was entitled to relief under Graham. This c ourt explained that the supreme court had clarified that i t is not necessary for term-o f-years sentences to be "de facto" life sentences for Graham to apply. Id. at 778 (cit ing Kelsey v. State, 206 So. 3d 5, 10 (Fla. 2016)). Instead, "the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating this spec ial class of offenders for demonstrable maturity and reform in the future." Id. (quot ing Henry, 175 So. 3d at 680). And this court explained that, in Atwell, the supreme co urt concluded that Florida's parole system does not meet this standard. Id. While the reasoning of Marsha ll is certainly applicable to th is case, this court has not expressly considered the State's argument about R atliff's PPRD. Three of our sister courts have considered the argument, and there is a split among the districts. The Fifth District has determined that a juvenile defendant sen tenced to life in prison with parole is only entitled to r esentencing if his or her PPRD results in a "de facto" life- 5 - sentence. See, e.g., Williams v. State, 198 So. 3d 1084, 1086 (Fla. 5th DCA 2016); Stallings v. State, 198 So. 3d 1081, 1082 (Fla. 5th DCA 2016). The Fifth District concluded that Atwell turned in part on th e fact that the defendant's PPRD exceeded his life expectancy and virtually ens ured he would spend the remainder of his life in prison. Williams, 198 So. 3d at 1 085. In so doing, the district court relied on the language in Atw ell providing that "Florida' s existing parole system, as set forth by statute, does not provide for individualized consi deration of Atwell's juvenile status at the time of the murder, as required by Miller, and th at his sentence, which is virtually indistinguishable from a sentence of life without par ole, is therefore unconstitutional." Id. at 1086 (emphasis added) (quoting Atwel l, 197 So. 3d at 1041). Conversely, the Third and Fourth Districts have concluded tha t Atwell requires resentencing regardless of a defendant's PPRD. See, e .g., Reid v. State, 42 Fla. L. Weekly D1216, D1217 (Fla. 3d DCA May 31, 2017); Carter v. State, 215 So. 3d 125, 127 (Fla. 3d DCA 2017); Michel v. State, 204 So. 3d 101, 1 01 (Fla. 4th DCA 2016), review granted, No. SC16-2187, 2017 WL 3484282 (Fla. Jan. 18, 2 017). In so doing, these courts determined that Atwell turned on the Florida parol e system's inadequate review process. See Reid, 42 Fla. L. Weekly at D1217; Carter, 215 So. 3d at 127; Michel, 204 So. 3d at 101.

We conclude that the Third and Fourth Districts have adopted the better interpretation of Atwell. We understand the Fifth District's d ecision to give meaning to the language in Atwell focusing on the fact that, due to his PP RD, the defendant would not be released during his natural lifetime. However, we concl ude that Atwell turns on- 6 - the conclusion that Florida's parole system is not sufficient t o remedy the constitutional

violations discussed in Miller and Graham. Our holding is consistent with two of the supreme court's pos t-Atwell decisions addressing the breadt h of Miller and Graham. In John son v. State, 215 So. 3d 1237, 1239, 1242 (Fla. 2017), the supreme court held that th e defendant's 100-year sentence was unconstitutional under Graham despite the availabi lity of early release due to gain time. The court said the State's argument that the availability of gain time

rendered the sentence constitutional was based on too narrow a reading of Graham. Id. Instead, the proper question was whether the sentence "provide[ s] an opportunity for early release that is: (1) meani ngful, (2) based on a demonstr ation of maturity and rehabilitation, and (3) during his or her natural life." Id.; see also Kelsey, 206 So. 3d at 10 ("After we made clear that Graham does indeed apply to term- of-years sentences, we have declined to require that such sentences must be 'de fac to life' sentences for Graham to apply."). In conclusion, under Atwell, juveniles serving life sentences with parole eligibility are entitled to relief under Miller and Graham rega rdless of whether their PPRD results in their sentence being a "de facto" life sentence . Accordingly, we affirm the postconviction court's order . We also certify conflict wit h the Fifth District's decisions in Williams and Stallings. Affirmed; conflict certified.

NORTHCUTT and MORRIS, JJ., Concur.