### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

TYRONE GLADON
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 16

- 3810

[ August 16, 2017 ]

Appeal of order denying rule 3.800 motion from the Circuit Court for

the Seventeenth Judicial Circuit, Broward County ; Edward Harold Merrigan , Judge; L.T. Case No s

. 79

- 6274 CF10A, 79

- 7437 CF10A, 79

- 8139 CF10A and 79

- 9358 CF10A

.

Tyrone Gladon, Bristol, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly Acuña, Assistant Attorney General, West Palm Beach, for appellee.

P ER C URIAM

.

Tyrone Gladon appeals the denial of a motion to correct illegal sentence.

He claims that a 99

- year sentence for non

- homicide offenses he committed as a juvenile violates Graham v. Florida , 560 U.S. 48 (2010), and subsequent Florida Supreme Court decisions interpreting Graham . The

trial court denied the motion based on the s tate’s response, which contended relief was unavailable under rule 3.800(a), where an evidentiary hearing was needed to resolve a factual dispute regarding appellant’s birthdate. We reverse and remand for further proceedings because the trial court should have treated appellant’s sworn motion as a timely rule 3.850(b)(2) motion.

In its response below, the State disputed appellant’s juvenile status

, given his date of birth as shown on the Department of Corrections website. While appellant claimed he was 17 years old at the time of the offenses,

the State asserted he was 22 years old. Even assuming appellant was a juvenile, the Stat e argued that appellant’s 99

- year sentence was not unconstitutional because it was not the “functional equivalent” of a life2 sentence where appellant’s eligibility for parole and gain time brought his

release date within his natural lifetime.

This reasoni ng has since been reject ed by the Florida Supreme Court, because the constitutionally relevant inquiry for a juvenile’s sentence is whether it provides a meaningful opportunity for early release based on maturation and rehabilitation; the length of the sen tence alone is not dispositive. See Johnson v. State , 215 So. 3d 1237 , 1240 (Fla. 2017) (“ Graham prohibits juvenile nonhomicide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism.”); Kelsey v. State , 206 So. 3d 5, 10

- 11 (Fla. 2016) (declining to require that

a term

- of

- years sentence be a “de facto life” sentence for Graham to apply).

Furthermore, the Florida Supreme Court has indicated that parole and gain time generally do not satisfy the requireme nts of Graham because neither avenue of early release is adequately based on a juvenile’s demonstration of maturity and rehabilitation. See Johnson , 215 So. 3d at 1237 (recognizing that Graham , as articulated in Henry v. State , 175 So. 3d 675 (Fla. 2015), prohibits “a sentence which includes early release that is not based on a demonstration of rehabilitation and maturity” such as gain time); Atwell v. State , 197 So. 3d 1040, 1049 (Fla. 2016) (“Parole is, simply put, ‘patently inconsistent with the legisla tive intent’ as to how to comply with Graham and Miller [ v. Alabama , 567 U.S. 460 (2012) ] .” (citation omitted)).

In the present case, appellant filed his rule 3.800(a) motion, which is sworn under the penalty of perjury, in 2016. “[A] motion filed under rule 3.800(a) may be treated as a motion filed under rule 3.850 where it is in the ‘interest of justice to do so’ and the motion would be timely under rule

3.850.” Johnson v. State , 60 So. 3d 1045, 1052 (Fla. 2011) (citation omitted). Although appellant filed his motion outside the two

- year window of rule 3.850(b), appellant’s motion asserted he was entitled to relief under Henry and Atwell , which were decided in 2015 and 2016, respectively. See Fla. R. Crim. P. 3.850(b)(2) (providing an exception to the two

- year time limit where “the fundamental constitutional right asserted was not established within the [two

- year] period . . . and has been held to apply retroactively, and the claim is made within 2 years of the date of the

mandate of the decision annou ncing the retroactivity”).

The United States Supreme Court’s decision in Graham created a new fundamental constitutional right, and courts have applied Graham retroactively. See St. Val v. State , 107 So. 3d 55 3 , 554 (Fla. 4th DCA 2013).

Because Graham a pplies retroactively, “ Henry ’s application of Graham to lengthy term of years sentences should also be given retroactive3 application.” Williams v. State , 197 So. 3d 569, 571 (Fla. 2d DCA 2016.

Accordingly, appellant’s motion was timely filed pursuant to rule 3.850(b)(2). See Marshall v. State , 214 So. 3d 776, 777

- 79 (Fla. 2d DCA 2017) (reversing the denial of a rule 3.850(b)(2) motion, where juvenile

non

- homicide offender with 99

- year sentence filed motion within two years

of the decisions in Henry and A twell ).

On remand, the trial court should consider appellant’s motion under rule 3.850(b)(2) and address appellant’s claim in light of the Florida Supreme Court decisions noted above. Assuming the State cannot conclusively refute appellant’s claim with r ecord attachments, the trial court should conduct an evidentiary hearing to resolve the dispute concerning appellant’s birthdate. At a hearing, appellant will bear the

burden. Fla. R. Crim. P. 3.850(f)(8)(B) (“At an evidentiary hearing, the

defendant sha ll have the burden of presenting evidence and the burden of proof in support of his or her motion.”).

Finally, we note that appellant is subject to sanctions if the trial court determines that he has brought a frivolous claim or has knowingly or

recklessl y made false allegations. § 944.279(1), Fla. Stat. (2016). “Postconviction movants should also remain aware that penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postconviction proceedings.” Oquendo v. State , 2 So. 3d 1001, 1006 (Fla. 4th DCA 2008).

Reversed and R emanded for further proceedings

.

T

AYLOR
, D AMOORGIAN and F ORST
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.