### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA F OURTH D ISTRICT

WILLIAM DAVIS , Appellant,

v.

STATE OF FLORIDA , Appellee

.

No s . 4D 11

- 2993 and 4D11

- 2994

[ December 16, 2015 ]

Consolidated a ppeal s from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Michael A. Robinson , Judge; L.T. Case No s

. 96

- 23307CF10A and 96

- 21254 CF10A

. Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahass ee, and Georgina Jimenez

- Orosa, Assistant Attorney General, West Palm Beach, for appellee.

M AY , J.

We sua sponte withdraw our previously issued opinion and substitute this opinion in its place.

In this consolidated appeal of two criminal cases, the defendant challenges an order revoking his probation and imposing two consecutive forty

- year sentences. In Case No. 96

- 21254CF10A, the d efendant was convicted of two counts of sexual battery by a person under 18 on a child under 12
, and one count of indecent assault of a person less than 16 years of age. In Case No. 96

- 23307CF10A , the d efendant was convicted of one count of sexual battery by a person under 18 on a child under 12. Following these convictions in 1997, the trial court sentenced the d efendant to a term of ten years in prison to be followed b y ten years’ probation.In 2009, less than three years after his release from prison, the State

filed affidavits of violation of probation (“VOP”). The trial court modified the d efendant’s probation to include electronic monitoring and a 10:00 p.m. curfew. Throughout 2009, several other affidavits of VOP were filed, but the d efendant ’s probation was reinstated with special conditions added.

In 2011, the State filed the affidavit s of VOP at issue. After the d efendant was arrested, the State filed a Second Amended Affidavit of VOP, alleging that the d efendant violated eleven conditions of his probation. After a VOP hearing, the trial court concluded the d efendant violated five

co nditions of his probation: (1) leaving the county without the consent of his probation officer; (2) failing to live and remain at liberty without violating any law by committing sexual battery against a child less than 12 years old; (3) falsely reporting to his probation officer that he had not used illegal drugs; (4) f ailing to actively participate in and successfully complete a sex offender treatment program at his own expense; and (5) failing to participate at least annually in polygraph examinations as a part of a treatment program.

The trial court revoked the d efendant’s probation and sentenced him to
t wo concurrent life sentences for two counts of sexual battery by a person under 18 on a child under 12 , to run concurrent with a fifteen

- year prison sentence for indecent assault of a person under 16 years of age; and life in prison for sexual battery by a person under 18 on a child under 12. The
sentences were to run consecutively.

The d efendant filed a Motion to Correct Illegal Sente nces under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the life sentences imposed for non

- homicide crimes committed as a juvenile violated the prohibition on cruel and unusual punishment as found in the Eighth Amendment to the United State s Constitution. The trial court granted the d efendant’s motion , and re

- sentenced him t o two concurrent forty

- year sentences for two counts of sexual battery by a person under 18 on a child under 12, to run concurrent with a fifteen

- year prison sentence fo r indecent assault of a person under 16 years of age; and forty years in prison for sexual battery by a person under 18 on a child under 12. The
sentences were to run consecutively. The aggregate sentence is eighty years in prison. The d efendant appeale d.

He raised three issues: (1) the trial court erred in finding the defendant willfully violated his probation; (2) the court erred in finding the defendant willfully violated conditions four and five; and (3) the eight y

- year sentence is cruel and unusua l because it is a de facto life sentence. We find nomerit in the first two issues, but must remand the case to the trial court

for resentencing in light of the Supreme Court of Florida’s decision in Henry v. State
, 175 So. 3d 675 (Fla. 2015). In Henry
, the 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.’” Id

. at 679 (quoting Graham v. Florida , 560 U.S. 48, 75 (2010))

. Here, the defendant was a juvenile when the offenses were committed. His eighty

- year sentence runs afoul of Henry . We therefore reverse and remand for another re

- sentencing.

Reversed and Remanded.

G ROSS and F ORST , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.