DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIAM DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Nos. 4D11-2993 and 4D11-2994

[December 16, 2015]

Consolidated appeals from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case 

Nos. 96-23307CF10A and 96-21254CF10A.

Carey Haughwout, Public Defender, and John Pauly, Assistant Public 

Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina 

Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for 

appellee.

MAY, 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 defendant 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 defendant 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 

defendant to a term of ten years in prison to be followed by 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 defendant’s probation to include electronic monitoring and a 10:00 

p.m. curfew. Throughout 2009, several other affidavits of VOP were filed, 

but the defendant’s probation was reinstated with special conditions 

added.

In 2011, the State filed the affidavits of VOP at issue. After the 

defendant was arrested, the State filed a Second Amended Affidavit of VOP, 

alleging that the defendant violated eleven conditions of his probation. 

After a VOP hearing, the trial court concluded the defendant violated five 

conditions 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) failing 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 defendant’s probation and sentenced him to 

two 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 defendant filed a Motion to Correct Illegal Sentences 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 States Constitution. The trial court granted the 

defendant’s motion, and re-sentenced him to 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 for 

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 defendant appealed.

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 eighty-year sentence 

is cruel and unusual because it is a de facto life sentence. We find no 
merit 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.

GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.