## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 17

- 5248

_____________________________

T RAVIS D. M ARSHALL , Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court for Leon County

. Martin A. Fitzpatrick , Judge

. August 23, 2019

P ER C URIAM

. Appellant , Travis D. Marshall

, challenges his convictions and
sentences for burglary of a dwelling, grand theft, and petit theft

, offenses he committed at the age of twenty

- one

. We affirm as to both issues Appellant raises on appeal and write only to address his argument that the minimum mandatory fifteen

- year prison
sentenc e he received on the burglary count as a prison releasee reoffender (“PRR”) is unconstitutional pursuant to Miller v. Alabama , 567 U.S. 460 (2012) , and Graham v. Florida , 560 U.S. 48 (2010)

, for the reason that he qualified for it only because of prior cri mes he committed when he was a juvenile.

The constitutionality of a sentence is reviewed de novo

. Nelms v. State , 263 So. 3d 88, 90 (Fla. 4th DCA 2019) ; see also Andrews2 v. State , 82 So. 3d 979, 984 (Fla. 1st DCA 2011) (explaining that constitutional issues are reviewed de novo and “ when considering Eighth Amendment issues, appellate courts must yield ‘substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals’” (quoting Solem v. Helm

, 463 U.S. 277, 290 (1983)).

“Prison releasee reoffender” means a defendant who commits or attempts to commit an en umerated offense, such as burglary, within three years after being released from a correctional facility following incarceration for an offense for which the sentence is punishable by more than one year

. § 775.082(9) (a)

, Fla. Stat. (2017)

. I f the State seeks PRR sentencing and proves that the defendant is a PRR, the court must sentence the defendant to at least fifteen years of imprisonment for a second

- degree felony

. Id. A person sentenced as a PRR may be released only upon expiration of the sentence, shall not be eligible for parole or any form of early release, and must serve 100% of the court

- imposed sentence. § 775.082(9) (b)

, Fla. Stat. As such, “ [t] he PRR statute is a mandatory minimum provision that creates a sentencing floor.” Cotto v. State

, 139 So. 3d 283, 286 (Fla. 2014).

I n Graham , the Supreme Court held that the imposition of a life without parole sentence on a juvenile offender who did not commit a homicide constitutes cruel and unusual punishment. 560 U.S. at 74

. Juvenile nonhomicide offenders’ limited culpability, the severity of the sentence of life without parole, and the lack of penological justification for the punishment for such offenders led the Court to conclude that the sentencing practice was cruel and unusual. Id. (explaining that a state need not guarantee a juvenile nonhomicide offender ’ s eventual release, but it must afford some realistic opportunity to obtain release before the end of the life term based on demonstrated maturity and rehabilitation). The Court d rew the “clear line” at the age of eighteen for the purposes of its holding. Id. at 74

- 75 (citing Roper v. Simmons , 543 U.S. 551 (2005), where the Supreme Court held that the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on juvenile offenders and recogniz ed that “[t]he qualities that distinguish juveniles from adults do not disappear when an3 individual turns 18,” but concluded that the line must be drawn at the age of 18 because that is “the point where society draws the lin e for many purposes between childhood and adulthood” ).

Subsequently , in Miller , the Supreme Court held that a mandatory life without parole sentence for a juvenile offender violates the Eighth Amendment’s prohibition on cruel and unusual punishment becau se it prevents consideration of juveniles’ lessened culpability and greater capacity for change. 567 U.S. at 465, 479

. The Court focused on the fact that “ Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing” and on the reasons why “juveniles have diminished culpability and greater prospects for reform.” Id. at 471. The Court again defined juvenile offenders as those under the age of eighteen at the time of their crimes. Id. at 465, 470

- 71, 473, 489.

In response to Graham and Miller , the Florida Legislature in 2014 enacted juvenile sentencing laws . The juvenile sentencing laws are codified in sections 775.082, 921.1401, 921.1402, Florida Statutes, and apply to defendants who are convicted of c ertain offenses they committed when they were under the age of eighteen and who are sentenced to a term of life imprisonment or its equivalent.

Here, Appellant argues that his mandatory day

- for

- day PRR sentence is unconstitutional pursuant to Graham and Miller and he should be resentenced under the juvenile sentencing statutes. We find Appellant’s argument to be without merit for a number of

reasons. First, Appellant was sentenced as a PRR for an offense he committed as an adult; therefore, Graham

, Miller , and the juvenile sentencing statutes are inapplicable. Appellant tries to avoid this conclusion by contending that while the mandatory sentence was not imposed for an offense he committed as a juvenile, it was imposed because of offenses he commi tted as a juvenile. While that is true to the extent that he could not have received the PRR sentence absent the prior offenses he committed as a juvenile, it overlooks the fact that he is not challenging the sentences for the offenses he committed as a j uvenile and he could not have received the PRR sentence had he not committed the new offenses as an adult.4 Indeed, Appellant’s argument ignores and defeats the purpose of the PRR statute , which is to punish certain reoffenders to the fullest extent and t hereby deter recidivism. See § 775.082(9)(d)1., Fla. Stat. (“It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law . . . .”) ; State v. Hearns
, 961 So. 2d 211, 217 (Fla. 2007) (“The PRR statute . . . is intended to deter recidivism by imposing longer sentences on repeat offenders.”); Mobley v. State , 983 So. 2d 630, 632 (Fla. 5th DCA 2008) (explaining that the legislative intent behind the PRR
st atute is to punish certain reoffenders to the fullest extent of the law).

Regardless, courts have consistently declined to extend the holdings of Graham and Miller and the applicability of the juvenile sentencing statutes to offenders eighteen years of a ge or older

. See Romero v. State , 105 So. 3d 550, 551

- 53 (Fla. 1st DCA 2012) ( rejecting the eighteen

- year

- old offender’s argument that his sentence of life without parole for murder was unconstitutional pursuant to Graham because of his youth and the atte ndant factors; holding that for Graham to apply, the offender must have been a juvenile at the time of the commission of the offense; and noting that “[n]ot a single court in this country has extended Graham to an adult offender. On the contrary, several c ourts have reaffirmed that Graham is inapplicable to adult offenders

. ” ) ; see also McCray v. State , 247 So. 3d 721, 722 (Fla. 1st DCA 2018) (per curiam affirming with a citation to Romero as holding that Graham does not apply to a defendant eighteen years of age or older); Wilson v. State , 249 So. 3d 800 (Fla. 1st DCA 2018) (same); Jean

- Michel v. State , 96 So. 3d 1043, 1045 (Fla. 4th DCA 2012) (rejecting the appellant’s argument that his three consecutive life

s entences for nonhomicide crimes were unconstitutional pursuant
to Graham because he was nineteen years old at the time of the offenses and emphasizing that in both Roper and Graham , the Supreme Court expressly drew the line at the age of eighteen). As

we have stated, “[w] e apply Graham as written. We decline to take the extreme act of extending Graham to adult offenders in the absence of a clear and explicit directive from the Supreme Court.” Romero , 105 So. 3d at 55 4.5 Second, even if Graham and Miller c ould be extended to an adult offender, they would be inapplicable because Appellant was not sentenced to life imprisonment or its equivalent

. See Romero

, 105 So. 3d at 553 (explaining that for Graham to apply, the offender must have been sentenced to life and the sentence must not provide him with any possibility of release during his lifetime) ; see also McCrae v. State , 267 So. 3d 470, 471 (Fla. 1st DCA 2019) (finding that the appellant’s thirty

- year prison sentence was not inconsistent with Graham or Miller because “there was no life
sentence

— de facto or otherwise

. Indeed, McCrae will still be in his forties when released

. ” ); Hart v. State , 255 So. 3d 921, 92 7

- 28 (Fla. 1st DCA 2018) (finding that the appella nt could not demonstrate that his aggregate f ifty

- year prison sentence violate d Graham because “[he] was not sentenced to a life sentence or a de facto life sentence. Consistent with the requirements of Graham

, [his] fifty

year sentence affords him a meani ngful opportunity for release during his natural life

. ” ); Davis v. State , 214 So. 3d 799, 799 (Fla. 1st DCA 2017) (concluding that the appellant’s aggregate thirty

five

- year prison sentence did not violate Graham or Miller because he “was not sentenced to a life, mandatory life, or a de facto life sentence” ). Appellant’s fifteen

- year sentence is considerably shorter than sentences we have found not to constitute life
sentences.

Lastly, Appellant contends that the juvenile sentencing laws should be applie d to his situation. However, those statutes do not apply to the circumstances this case presents because there is not an original sentence that violates Graham or Miller

. See Hart , 255 So. 3d at 924

- 27 (“[T] he Florida Supreme Court very narrowly defined the class of offenders entitled to resentencing under the new juvenile resentencing laws; specifically, those defendants who originally received life sentences and who were resentenced after their sentences we re vacated pursuant to Graham but before the July 1, 2014 effective date of the new juvenile sentencing laws.” ); see also McCrae , 267 So. 3d at 471

- 72 (explaining that “[w]ithout an unconstitutional sentence to start with, McCrae is not entitled
to resent encing under the new statute ” and “[u] nless and until the Florida Supreme Court announces that every juvenile defendant is entitled to a sentence under the new laws

— regardless of when the defendant was sentenced or whether the original sentence violated G raham or Miller

— we will follow the rule that6 resentencing only applies when there was a Graham or Miller violation ” )

. For the foregoing reasons, we conclude that Appellant’s PRR sentence does not violate Graham

, Miller , or the Eighth Amendment’s prohibiti on against cruel and unusual punishment. Accordingly, we affirm Appellant’s convictions and sentences.

A FFIRMED

.
L EWIS , O STERHAUS , and M.K. T HOMAS , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee

, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera , Assistan t Attorney General, Tallahassee

, for Appellee.