IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA 

November 18, 2016 

DANNY WAITERS, JR., ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-4589 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

________________________________ ) 

BY ORDER OF THE COURT: 

 Appellant's motion for rehearing is denied; the motion for a written opinion is 

granted. The prior per curiam affirmance dated April 8, 2016, is withdrawn, and the 

attached opinion is issued in its place. No further motions for rehearing will be 

entertained. 

I HEREBY CERTIFY THE FOREGOING IS A 

TRUE COPY OF THE ORIGINAL COURT ORDER. 

MARY ELIZABETH KUENZEL, CLERK 
IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

DANNY WAITERS, JR., ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-4589 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

________________________________ ) 

Opinion filed November 18, 2016. 

Appeal from the Circuit Court for 

Manatee County; Edward Nicholas, 

Judge. 

Howard L. Dimmig, II, Public Defender, 

and Carol J.Y. Wilson, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Jason M. Miller, 

Assistant Attorney General, Tampa, 

for Appellee. 

PER CURIAM. 

 Danny Waiters appeals from his conviction and sentence for second 

degree murder. He raises two issues in this appeal, neither of which require reversal. 

However, we write to explain why we have affirmed the denial of his motion to correct 

sentencing error. Waiters, who was seventeen years old when the offense was 
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committed, is serving a forty-year sentence for second-degree murder. He contends 

that pursuant to Horsley v. State, 160 So. 3d 393 (Fla. 2015), he was entitled to be 

sentenced under section 921.1402, Florida Statutes (2014),1 even though his crime was 

committed before the effective date of the statute. Horsley held that section 921.1402 

applies to all juvenile offenders whose sentences are unconstitutional under Miller v. 

Alabama, 132 S. Ct. 2455 (2012), regardless of when their crimes were committed. 

Horsley, 160 So. 3d at 405-06. Miller held that a mandatory life sentence without parole 

for juvenile homicide offenders is unconstitutional. 132 S. Ct. at 2469. Because 

Waiters did not receive a mandatory life sentence without parole, his sentence is not 

unconstitutional under Miller and he was not entitled to be sentenced under section 

921.1402. Moreover, Waiters' forty-year sentence is not a de facto life sentence without 

parole, see, e.g., Williams v. State, 197 So. 3d 569, 572 (Fla. 2d DCA 2016) (holding 

that a fifty-year sentence is not the equivalent of a life sentence without the possibility of 

parole), qualifying him for relief under Landrum v. State, 192 So. 3d 459, 469 (Fla. 

2016) (reversing Landrum's nonmandatory life-without-parole sentence for seconddegree murder imposed without individualized consideration of Landrum's "youth and its 

attendant characteristics" that is required under Miller). Accordingly, we affirm the 

denial of his motion to correct sentencing error. 

MORRIS and BLACK, JJ., Concur. 

KELLY, J., Concurs in result. 

 1Section 921.1402 provides for review of a juvenile's sentence to allow the 

juvenile an opportunity to obtain early release based upon demonstrated maturity and 

rehabilitation. 
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KELLY, Judge, Concurring in result. 

 I concur in result because I believe this court's precedent, and particularly 

Williams, requires me to do so. Whether Waiters was entitled to be sentenced under 

section 921.1402 hinges on what the Florida Supreme Court meant in Horsley when it 

stated the new statute applies to "all juvenile offenders whose sentences are 

unconstitutional under Miller." Horsley, 160 So. 3d at 395 (emphasis added). As have 

others, this court has adopted a literal view of what it means for a sentence to be 

unconstitutional under Miller (prohibiting sentencing schemes that mandate life in prison 

without possibility of parole for juvenile offenders convicted of murder) or Graham v. 

Florida, 560 U.S. 48 (2010) (invalidating life without parole sentences for juveniles 

convicted of nonhomicide offenses). See, e.g., Williams, 197 So. 3d at 572. However, 

the Florida Supreme Court has emphasized that it has "consistently followed the spirit of 

Graham and Miller rather than a narrow, literal interpretation." Atwell v. State, 197 So. 

3d 1040, 1046 (Fla. 2016), reh'g denied, No. SC14-193, 2016 WL 4440673 (Aug. 23, 

2016). It again made this point recently in Atwell where it stated, "[i]t is thus evident 

from our case law that this Court has—and must—look beyond the exact sentence 

denominated as unconstitutional by the Supreme Court and examine the practical 

implications of the juvenile's sentence, in the spirit of the Supreme Court's juvenile 

sentencing jurisprudence." Id. at 1047. In rejecting the notion that a life sentence under 

Graham meant only a sentence denominated as life in prison, the supreme court in 

Henry v. State, 175 So. 3d 675 (Fla. 2015), stated, 

 In light of the United States Supreme Court's longheld and consistent view that juveniles are different—with 
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respect to prison sentences that are lawfully imposable on 

adults convicted for the same criminal offenses—we 

conclude that, when tried as an adult, the specific sentence 

that a juvenile nonhomicide offender receives for committing 

a given offense is not dispositive as to whether the 

prohibition against cruel and unusual punishment is 

implicated. 

Id. at 680. 

 The supreme court's focus has been on the need for individualized 

sentencing procedures for juveniles—procedures different from those used for adults—

as well as the need for a subsequent review mechanism that provides juveniles with a 

meaningful opportunity for release. See id.; see also Landrum, 192 So. 3d at 468-69; 

Henry, 175 So. 3d at 680; Horsley, 160 So. 3d at 406. 

 I acknowledge that the supreme court has not held that a juvenile 

homicide offender who is sentenced to a lengthy term of years, without an individualized 

sentencing hearing and without an opportunity for subsequent review, is serving a 

sentence that is unconstitutional under Miller. However, given its emphasis on the 

necessity for these procedures—as opposed to a focus on the actual sentence 

imposed—I would reverse the denial of Waiters' motion and remand for resentencing 

under the new statutory scheme.