# Third District Court of Appeal

State of Florida

Opinion filed March 15, 2017

. Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1090

Lower Tribunal No. 79-5376

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### Joseph Carter

, Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Lisa Walsh

, Judge.

Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant

Public Defender

, for appellant.

Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney

General

, for appellee.

Before FERNANDEZ, LOGUE, and SCALES, JJ.

LOGUE, J.The defendant, Joseph Carter, seeks review of the trial court’s denial of his

3.850 motion for postconviction relief challenging the constitutionality of his

aggregate sentence of 152 years in prison, with parole. We reverse.

In 1979, the defendant, who was a minor at the time, was found guilty of

burglary and sexual battery and was sentenced to a total of 152 years for both

counts, with parole. 1 In 1982, he was given a presumptive parole release date

(PPRD) of March 25, 1993. The PPRD was pushed back, however, due to various

disciplinary reports. From 2007 forward, the defendant did not have any

disciplinary reports and in 2007, his PPRD was set for March 2016.

In December 2015, the defendant was interviewed by a parole commission

investigator regarding the possibility of parole. The investigator recommended

parole. However, in April 2016, the parole commission denied parole and

provided that the defendant “will be Reinterviewed for [his] Extraordinary

Interview during the month of October, 2022.”

The defendant argued in his postconviction motion that the aggregate

sentence of 152 years was a de facto life sentence of a minor and therefore

unconstitutional under Graham v. Florida

, 560 U.S. 48 (2010) and Henry v. State

,

175 So. 3d 675 (Fla. 2015). His sentence was unconstitutional, he contended,

1 The defendant was sentenced to 137 years for the burglary count and 15 years for

the sexual battery count. The conviction and sentence were affirmed on direct

appeal in Carter v. State

, 410 So. 2d 552 (Fla. 3d DCA 1982).

2because his parole eligibility was not a meaningful opportunity for release. The

defendant sought resentencing under sections 775.082(3)(c) and 921.1401, Florida

Statutes (2014). The trial court denied his motion and this appeal followed.

Notwithstanding the fact that he will be reevaluated for the possibility of

parole in 2022, we conclude the defendant is correct and that he is entitled to

resentencing under sections 775.082(3)(c) and 921.1401. See Atwell v. State

, 197

So. 3d 1040, 1048 (Fla. 2016) (“In most respects, a sentence of life with the

possibility of parole for first-degree murder, based on the way Florida’s parole

process operates under the existing statutory scheme, actually resembles a

mandatorily imposed life sentence without parole that is not ‘proportionate to the

offense and the offender.’” (quoting Horsley v. State

, 160 So. 3d 393, 406 (Fla.

2015))); Henry v. State

, 175 So. 3d 675, 680 (Fla. 2015), cert. denied

, 136 S. Ct.

1455 (2016) (“Because we have determined that [the defendant’s] sentence is

unconstitutional under Graham

, we conclude that [the defendant] should be

resentenced in light of the new juvenile sentencing legislation enacted by the

Florida Legislature in 2014, ch.2014

– 220, Laws of Fla.”); Miller v. State

, 42 Fla.

L. Weekly D51 at *1 n.1 (Fla. 3d DCA Jan. 25, 2017) (“The State’s contention that

[the defendant] was parole-eligible as early as twelve years after the commission of

first-degree murder is irrelevant.”).

3We therefore reverse the defendant’s aggregate 152-year sentence for

burglary and sexual battery and remand to the trial court for the appropriate

resentencing under section 775.082(3)(c), Florida Statutes and section 921.1401,

Florida Statutes.

Reversed and remanded with instructions.

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