Supreme Court of Florida

_____________

No. SC15-2079

____________

THOMAS KELSEY,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[December 8, 2016]

PERRY, J.

This case is before the Court for review of the decision of the First District 

Court of Appeal in Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015). In its 

decision, the district court expressed concern and certified a question of great 

public importance,1 which we rephrase as follows:

 

1. The following question was certified by the First District:

Whether a defendant whose initial sentence for a 

nonhomicide crime violates Graham v. Florida, and who 

is resentenced to concurrent forty-five year terms, is 

entitled to a new resentencing under the framework 

established in chapter 2014-220, Laws of Florida?

Kelsey, 183 So. 3d at 442.
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Is a defendant whose original sentence violated Graham v. Florida, 

560 U.S. 48 (2010), and who was subsequently resentenced prior to 

July 1, 2014, entitled to be resentenced pursuant to the provisions of 

chapter 2014-220, Laws of Florida?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the rephrased 

question in the affirmative.

FACTS AND PROCEDURAL HISTORY

Thomas Kelsey was born on December 10, 1986. The underlying offenses 

in this case occurred on November 6, 2002, when fifteen-year-old Kelsey

burglarized an apartment and raped the pregnant victim at knifepoint in the 

presence of her two small children. Kelsey was identified in 2008 based on a DNA 

match. In 2009, Kelsey was charged with two counts of armed sexual battery, 

armed burglary, and armed robbery, and he pleaded guilty. On March 26, 2010, a 

trial court sentenced Kelsey to two life sentences and two concurrent twenty-fiveyear terms for four nonhomicide offenses. After the United States Supreme Court 

decided Graham v. Florida, 560 U.S. 48 (2010), Kelsey sought to withdraw his 

plea, which was denied. At the resentencing held in January 2014, the trial court 

imposed concurrent sentences of forty-five years.2

 

2. The sentences also run concurrently to a twenty-year sentence that Kelsey 

is serving pursuant to a revocation of probation on an unrelated offense.
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On appeal, the First District Court of Appeal originally issued an opinion in 

Kelsey v. State, 183 So. 3d 439, 440 (Fla. 1st DCA 2015), comprised of one 

paragraph, holding:

Even if Mr. Kelsey were entitled to resentencing under Henry [v. 

State, 175 So. 3d 675 (Fla. 2015)], which applied the new sentence 

review statute to a Graham-eligible defendant, he is not entitled to the 

benefit of the new sentence review statute because his previous 

convictions for another separate armed robbery and conspiracy to 

commit armed robbery disentitle him to relief. See § 921.1402(2)(a), 

Fla. Stat. (2014) (“[A] juvenile offender is not entitled to review if he 

or she has previously been convicted of one of the following offenses, 

or conspiracy to commit one of the following offenses . . . armed 

robbery.”).

On Kelsey’s motion for rehearing, the First District issued a revised opinion, 

reconsidering its legal analysis, and “concluding that [Kelsey] is not entitled to 

resentencing again.” Id. Under its revised analysis, the First District opined that it 

was precluded from providing Kelsey the same relief afforded to Henry because 

Kelsey’s forty-five-year prison term did not constitute a de facto life sentence in 

violation of Graham. Id. at 441 (citing Abrakata v. State, 168 So. 3d 251, 252 (Fla. 

1st DCA 2015); Lambert v. State, 170 So. 3d 74, 76 (Fla. 1st DCA 2015)). 

Specifically, the First District stated, “Because the concurrent resentences at issue 

in this case do not violate Graham, we are constrained to deny relief.” Id.

After recognizing our guidance in Thomas v. State, 135 So. 3d 590 (Fla. 1st 

DCA 2014), quashed, 177 So. 3d 1275 (Fla. 2015) (table decision), the First 

District distinguished Kelsey, opining that the decision in Thomas was based on 
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Miller v. Alabama, 132 S. Ct. 2455 (2012),3and its progeny, and not Graham. The 

First District recognized that, “the supreme court appears to require that any 

juvenile initially sentenced . . . in violation of Miller be sentenced under the new 

framework regardless of what resentence may have been imposed in the interim.” 

Kelsey, 183 So. 3d at 441. However, the district court reasoned:

Unlike Miller cases for which no valid remedy on resentencing was 

available until the recent legislation, a wide range of valid term of 

years sentences are available for [juveniles] whose original sentences 

were unconstitutional under Graham. If those resentences themselves 

violate Graham by providing no meaningful opportunity for release 

(as in Henry and Gridine [v. State, 175 So. 3d 672 (Fla. 2015)]), the 

supreme court requires resort[ing] to the 2014 legislative remedies. 

But the supreme court has not yet held that all resentencings and reresentencings under Graham must also comply with the recent 

legislation. Our precedents have not held that a forty-five year 

sentence for a nonhomicide is a de facto life term to which Graham

applies; nor has our supreme court. We are thereby constrained to 

affirm in this case, but recognizing the need for clarity on this 

category of Graham cases certify the following question . . . .

Id. at 442.

DISCUSSION

Standard of Review

Because the certified question of great public importance before this Court 

presents a purely legal question, the appropriate standard of review is de novo. See

 

3. In Miller, the Supreme Court held that mandatory life sentences without 

parole for crimes committed by juveniles violate the Eighth Amendment.
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Gridine, 175 So. 3d at 674 (citing Haygood v. State, 109 So. 3d 735, 739 (Fla. 

2013)).

Graham

The United States Supreme Court’s decision in Graham held that Florida’s 

practice of sentencing juvenile offenders to life in prison for nonhomicide crimes 

violated the Eighth Amendment to the United States Constitution. For a period of 

nearly four years, the Florida Legislature left the trial courts and district courts of 

appeal to determine how to legally sentence juvenile nonhomicide offenders. In

2014, the Legislature passed chapter 2014-220, Laws of Florida, which provided 

judicial review for juvenile offenders who were tried as adults and received more 

than twenty years of incarceration, with exceptions. Following that, this Court, in 

a unanimous decision, decided that juveniles who receive sentences that do not 

provide a meaningful opportunity for release are entitled to be resentenced 

pursuant to chapter 2014-220, Laws of Florida. As we discuss further below, we 

conclude that our decision in Henry v. State, 175 So. 3d 675 (Fla. 2015), requires 

that all juvenile offenders whose sentences meet the standard defined by the 

Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled 

to judicial review. We therefore hold that all juveniles who have sentences that 

violate Graham are entitled to resentencing pursuant to chapter 2014-220, Laws of 
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Florida, codified in sections 775.082, 921.1401 and 921.1402, Florida Statutes

(2014).

To answer the First District’s certified question, we first revisit the Supreme 

Court’s decision in Graham. Terrance Jamar Graham received a withheld 

adjudication and was sentenced to probation for crimes he committed at the age of 

sixteen. He subsequently received a life sentence after violating that probation 

before he turned eighteen years of age. Graham, 560 U.S. at 53-57.

The Supreme Court began its analysis with its Eighth Amendment 

jurisprudence. Id. at 58. The Court noted that the core of the Eighth Amendment 

“is the ‘precept of justice that punishment for crime should be graduated and 

proportioned to [the] offense.’ ” Id. at 59 (quoting Weems v. United States, 217 

U.S. 349, 367 (1910)). The Court then noted that Graham presented a new 

categorical challenge to term-of-years sentences. Id. at 61 (“The present case 

involves an issue the Court has not considered previously: a categorical challenge 

to a term-of-years sentence.”). Accordingly, the Court reasoned, the correct 

approach to the analysis would be the one used in cases such as Kennedy v. 

Louisiana, 554 U.S. 407 (2008), Roper v. Simmons, 543 U.S. 551 (2005), and 

Atkins v. Virginia, 536 U.S. 304 (2002). Graham, 560 U.S. at 61-62.

Opining that “Roper established that because juveniles have lessened 

culpability they are less deserving of the most severe punishments,” Graham, 560 
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U.S. at 68 (citing Roper, 543 U.S. at 569), the Court pronounced a categorical rule. 

Id. at 75, 78, 79 (“Categorical rules tend to be imperfect, but one is necessary 

here.” “A categorical rule avoids the risk that . . . a court or jury will erroneously 

conclude that a particular juvenile is sufficiently culpable to deserve life without 

parole for a nonhomicide.” “[A] categorical rule gives all juvenile nonhomicide 

offenders a chance to demonstrate maturity and reform.”). The new categorical 

rule provided that:

The Constitution prohibits the imposition of a life without parole 

sentence on a juvenile offender who did not commit homicide. A 

State need not guarantee the offender eventual release, but if it 

imposes a sentence of life it must provide him or her with some 

realistic opportunity to obtain release before the end of that term.

Id. at 82.

In this Court’s discussions of Graham, we have underscored the Supreme 

Court’s emphasis on the status of the juvenile nonhomicide offender and the nature 

of the offense committed. See Henry, 175 So. 3d at 675 (citing Graham, 560 U.S. 

at 69). Accordingly, our focus has not been on the length of the sentence imposed 

but on the status of the offender and the possibility that he or she will be able to 

grow into a contributing member of society. To understand this reading of 

Graham, we now turn to our decision in Henry.

Henry
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Leighdon Henry, a juvenile offender who was tried as an adult, was 

convicted of multiple nonhomicide crimes and sentenced to life in prison plus an 

additional sixty years. Henry, 175 So. 3d at 676. After Graham issued, Henry’s 

life sentence was vacated and he was resentenced to thirty years in prison, to run 

consecutively to the originally imposed sixty-year sentence. Id.

On appeal, we concluded “that Graham prohibits the state trial courts from 

sentencing juvenile nonhomicide offenders to prison terms that ensure these 

offenders will be imprisoned without obtaining a meaningful opportunity to obtain 

future early release during their natural lives based on their demonstrated maturity 

and rehabilitation.” Id. at 680. We reasoned that the “Supreme Court’s long-held 

and consistent view that juveniles are different” supported the conclusion that “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. Thus, we determined that Graham was not 

limited to certain sentences but rather was intended to insure that “juvenile 

nonhomicide offenders will not be sentenced to terms of imprisonment without 

affording them a meaningful opportunity for early release based on a 

demonstration of maturity and rehabilitation.” Id. In light of this reasoning, we

concluded that the Eighth Amendment, as read through Graham, requires a review 

mechanism for evaluating this class of offenders because “any term of 
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imprisonment for a juvenile is qualitatively different than a comparable period of 

incarceration is for an adult.” Id. Therefore, our holding in Henry was not 

predicated on the term of the sentence but rather on the status of, and the 

opportunity afforded, the offender. Indeed, the holding of Henry was unequivocal. 

Additionally, we determined that the remedy outlined in Horsley v. State, 160 So. 

3d 393, 395 (Fla. 2015), applied to cases like Henry’s. See Henry, 175 So. 3d at 

680.

Horsley

In Horsley, a juvenile offender tried as an adult was convicted of first-degree 

felony murder, among other offenses, and received a mandatory life sentence 

without the possibility of parole. After Miller, the trial court resentenced Horsley 

to life imprisonment without the possibility of parole. The Fifth District Court of 

Appeal vacated that sentence and certified a question of great public importance to 

this Court.4 In our decision, we reasoned that “presented with this unique situation 

in which a federal constitutional infirmity in a sentencing statute has now been 

 

4. The Fifth District asked: “Whether the Supreme Court’s decision in

Miller v. Alabama, [132 S. Ct. 2455 (2012)], which invalidated section 

775.082(1)’s mandatory imposition of life without parole sentences for juveniles 

convicted of first-degree murder, operates to revive the prior sentence of life with 

parole eligibility after 25 years previously contained in that statute?” Horsley, 160 

So. 3d at 397 (quoting Horsley v. State, 121 So. 3d 1130, 1132-33 (Fla. 5th DCA 

2013)).
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specifically remedied by our Legislature, we conclude that the proper remedy is to 

apply [that legislation] to all juvenile offenders whose sentences are 

unconstitutional in light of Miller.” Horsley, 160 So. 3d at 395.

Miller held that “the Eighth Amendment forbids a sentencing scheme that 

mandates life in prison without possibility of parole for juvenile offenders,” even 

for juveniles convicted of homicide crimes. Miller, 132 S. Ct. at 2469. While the 

remedy articulated in Horsley initially only applied to those juvenile defendants 

whose sentences violated the Eighth Amendment pursuant to Miller, we extended 

the reasoning of Horsley to those juveniles whose sentences violated the Eighth 

Amendment pursuant to Graham in Henry. See Henry, 175 So. 3d at 680. We 

have since reaffirmed that application of the new statute is the appropriate remedy. 

See Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

Reading together our decisions in Henry, Horsley, and Thomas, it is clear 

that we intended for juvenile offenders, who are otherwise treated like adults for 

purposes of sentencing, to retain their status as juveniles in some sense. In other 

words, we have determined through our reading of the Legislature’s intent in 

passing chapter 2014-220, Laws of Florida, that juveniles who are serving lengthy 

sentences are entitled to periodic judicial review to determine whether they can 

demonstrate maturation and rehabilitation. It would be antithetical to the precept 

of Graham and chapter 2014-220, Laws of Florida, to interpret them so narrowly as 
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to exclude a juvenile offender who happens to have been resentenced before this 

Court issued Henry. With these considerations in mind, we turn to the present 

case.

This Case

Kelsey represents a narrow class of juvenile offenders, those resentenced 

from life to term-of-years sentences after Graham, for crimes committed before 

chapter 2014-220’s July 1, 2014, effective date. Kelsey argues that his sentence 

does not currently provide the relief specified in our previous decisions and seeks 

the judicial review granted to other defendants who, like him, were sentenced to 

terms that will not provide them a meaningful opportunity for relief in their 

respective lifetimes. We agree.

After we made clear that Graham does indeed apply to term-of-years 

sentences, we have declined to require that such sentences must be “de facto life” 

sentences for Graham to apply. See, e.g., Guzman v. State, 183 So. 3d 1025, 1026 

(Fla. 2016). By using chapter 2014-220 as a guide, we avoid second-guessing the 

legislative contemplation that resulted in the twenty-year cutoff for judicial review

contained in the law. However, in applying chapter 2014-220, we agree with the 

State that the new sentencing scheme contemplates the possibility of a life sentence 

for a juvenile nonhomicide offender. See Horsley, 160 So. 3d at 404 (“Juveniles 

convicted of nonhomicide offenses, thereby implicating Graham rather than Miller,
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also may be sentenced to life imprisonment if the trial court, after considering the 

specified factors during an individualized sentencing hearing, determines that a life 

sentence is appropriate.” (citing ch. 2014-220 §§ 1, 3, Laws of Fla.)). Because we

determine that resentencing is the appropriate remedy, the trial courts may embrace 

all of the provisions of chapter 2014-220 and are not required to limit themselves 

to only applying the judicial review provision. This would mean that if the State 

seeks a life sentence, the trial court’s determination would have to be informed by 

individualized sentencing considerations.

Kelsey further argues that he has a reasonable expectation of finality in his 

forty-five-year prison term because his term is lawful apart from its failure to 

provide judicial review. We disagree.

In Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003), we held that “[o]nce a 

sentence has been imposed and the person begins to serve the sentence, that 

sentence may not be increased without running afoul of double jeopardy 

principles.” (citing Lippman v. State, 633 So. 2d 1061 (Fla. 1994); Clark v. State, 

579 So. 2d 109 (Fla. 1991)). To do so, we articulated, was a clear violation of the 

Double Jeopardy Clause. Id. (citing State v. Wilson, 680 So. 2d 411, 413 (Fla. 

1996)). In 2012, we clarified that jeopardy attaches only to a legal sentence. 

Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (citing Harris v. State, 645 So. 2d 

386 388 (Fla. 1994)).
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Therefore, jeopardy has not attached to Kelsey’s illegal sentence, and when 

he is resentenced according to the provisions of chapter 2014-220, the State may 

again seek life imprisonment with judicial review. Kelsey originally began serving 

his sentence as a life sentence, but that sentence became illegal when the Supreme 

Court issued Graham and Kelsey successfully sought relief. However, his sentence 

was unconstitutional not because of the length of his sentence, but because it did 

not provide him a meaningful opportunity for early release based on maturation 

and rehabilitation. Accordingly, Kelsey’s resentencing under the provisions of 

chapter 2014-220 would not place him in any worse position than he would have 

been had he initially faced post-Graham resentencing under the statute.

For these reasons, there is no compelling reason that the State must be 

precluded from seeking a life sentence that complied with Graham:

A State is not required to guarantee eventual freedom to a 

juvenile offender convicted of a nonhomicide crime. What the State 

must do, however, is give defendants like Graham some meaningful 

opportunity to obtain release based on demonstrated maturity and 

rehabilitation. It is for the State, in the first instance, to explore the 

means and mechanisms for compliance.

Graham, 560 U.S. at 75. In Henry, we determined that the Legislature’s remedy 

was the appropriate remedy in these cases, and the Legislature has determined that 

the “means and mechanisms for compliance” with Graham are to provide judicial 

review for juvenile offenders who are sentenced to terms longer than twenty years. 

Therefore Kelsey is entitled to resentencing under those provisions. We therefore 
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answer the rephrased question in the affirmative and remand for further 

proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., and PERRY, 

J., concur.

POLSTON, J., dissents with an opinion, in which LEWIS and CANADY, JJ., 

concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

PARIENTE, J., concurring.

I concur with the majority that juvenile offenders like Kelsey, who were 

previously resentenced after the United States Supreme Court decided Graham v. 

Florida, 560 U.S. 48 (2010), but before the Legislature enacted chapter 2014-220, 

Laws of Florida, are entitled to resentencing under this sentencing scheme. 

Majority op. at 14. Resentencing under this new juvenile sentencing scheme 

includes, in most instances, the benefit of judicial review of the sentence as set 

forth in section 921.1402(2), Florida Statutes (2014). See majority op. at 11-12.

I write to emphasize that, in this case, even though our precedent in Dunbar 

v. State, 89 So. 3d 901 (Fla. 2012), does not preclude the State from seeking a life 

sentence on remand because Kelsey’s previously imposed sentence was illegal, the 

individualized sentencing consideration required by Graham and our juvenile 

sentencing precedent will likely preclude such a sentence. Indeed, as I explain 
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below, I would conclude that Kelsey is precluded from being resentenced to a term 

exceeding his current forty-five-year sentence when the sentencing court takes into 

account all of the sentencing factors set forth in section 921.1401(2). 

As we explained in Landrum v. State, chapter 2014-220 sets forth the 

individualized sentencing considerations that a sentencing court must consider 

“when determining if a juvenile offender should be sentenced to life 

imprisonment.” 192 So. 3d 459, 466 (Fla. 2016). These considerations have since 

been codified in section 921.1401(2), Florida Statutes (2014), and include the 

following sentencing factors:

(a) The nature and circumstances of the offense committed by 

the defendant.

(b) The effect of the crime on the victim’s family and on the 

community.

(c) The defendant’s age, maturity, intellectual capacity, and 

mental and emotional health at the time of the offense.

(d) The defendant’s background, including his or her family, 

home, and community environment.

(e) The effect, if any, of immaturity, impetuosity, or failure to 

appreciate risks and consequences on the defendant’s participation in 

the offense.

(f) The extent of the defendant’s participation in the offense.

(g) The effect, if any, of familial pressure or peer pressure on 

the defendant’s actions.
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(h) The nature and extent of the defendant’s prior criminal 

history.

(i) The effect, if any, of characteristics attributable to the 

defendant’s youth on the defendant’s judgment.

(j) The possibility of rehabilitating the defendant.

The record in this case demonstrates that, while the sentencing court did not 

consider all of the above factors, the sentencing court was aware that the 

Legislature was at the time considering legislation later enacted as chapter 2014-

220, Laws of Florida. Indeed, the sentencing court considered some of the 

individualized sentencing considerations since codified in section 921.1401(1) 

when determining whether to again sentence Kelsey to life in prison or to some 

lesser term. As the court explained:

We have to make a decision based on what we know about a person’s 

history, taking into account their psychological condition, their mental 

health, their age, you know, disabilities, severity of the crime, and all 

of the factors that [the psychologist] went over and defense counsel 

has adequately covered.

Further, the sentencing court heard testimony from a psychologist who had 

evaluated Kelsey, and whose testimony underscored “the special status of juvenile 

offenders for purposes of criminal punishment.” Henry v. State, 175 So. 3d 675, 

677 (Fla. 2015). As the psychologist explained: 

So, you have a 15 year old with a 80 IQ, borderline intellectual 

functioning, maybe even a lower achievement at that age, maybe, I 

don’t know. And then you have an adolescent, young brain 

develop[ment], where they have low decision making ability, frontal 
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lobe not being developed, executive functioning not being developed, 

and that’s compounded by an IQ in the borderline range.

Secondary, you have a kid whose, you know, in a marginal 

lifestyle, some trouble, maybe some special education, and he’s not 

functioning very high in terms of cognitive ability and he’s hanging 

out with what we call deviant peers. And so—well, I don’t that, I 

didn’t see him when he was 15, I’m making some hypothesis from 

evaluating juveniles over the years, and often juveniles with this level 

of functioning start doing bad things, start doing delinquent type 

things because they’re faced with the choice of being called lots of 

names, retarded, dumb, dummy, and they don’t want to be called 

those things and the way to get around that is to start acting out, and 

so they can be called bad, and they get identified as bad, and that’s 

part of their personality, and it’s the way they get accepted, and 

knowledge of deviant peer groups, but they want to fight against being 

called dumb or any of those derogatory words that teenage boys are 

apt to use. And so, they overcompensate and they get tough and street 

tough and start acting tough, and they start looking like the delinquent 

kid, and it’s really because of the way they are in their life, without 

enough positive adult mentoring peer, without enough appropriate 

prosocial peer groups. So, it has, sorry to use this word, it has a 

waterfall effect, you know. 

These statements demonstrate that the sentencing court was cognizant of the 

United States Supreme Court’s command that the “status of juvenile offenders 

warrants different considerations by the states whenever such offenders face 

criminal punishments as if they are adults.” Id. at 678. Therefore, even though 

chapter 2014-220 “contemplates the possibility of a life sentence for a juvenile 

nonhomicide offender,” majority op. at 12, I would conclude that such a possibility 

is slim. This is especially so in this case, where the sentencing court previously 

tried to comply with Graham during resentencing, expressly considered some of 

the sentencing factors now codified in section 921.141, and sentenced the juvenile 
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offender to concurrent sentences of forty-five years. Put simply, upon 

resentencing, the sentencing court must consider whether Kelsey is the “rare 

juvenile offender whose crime reflects irreparable corruption,” and thereby 

warrants a life sentence. Horsley, 160 So. 3d at 397 (citing Miller v. Alabama, 132 

S. Ct. 2455, 2469 (2012)). In my view, imposing a lengthier sentence in this 

nonhomicide case upon consideration of additional individualized sentencing 

factors would violate the basic “precept of justice that punishment for crime should 

be graduated and proportioned to [the] offense.” Landrum, 192 So. 3d at 460-61 

(quoting Graham, 560 U.S. at 59) (noting that upholding a juvenile offender’s life 

without parole sentence for second-degree murder “would violate this precept, as a 

juvenile convicted of the lesser offense of second-degree murder would receive a 

harsher sentence than a juvenile convicted of first-degree murder”). 

LABARGA, C.J., and PERRY, J., concur.

POLSTON, J., dissenting.

When Kelsey was fifteen years old, he committed burglary and raped a 

pregnant woman at knifepoint in front of her two small children. Unlike the 

majority, I would approve the First District Court of Appeal’s decision affirming 

Kelsey’s resentencing for these crimes. I also would answer the question as 

certified in the negative and hold that “a defendant whose initial sentence for a 

nonhomicide crime violate[d] Graham v. Florida, and who [was] resentenced to 
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concurrent forty-five year terms, is [not] entitled to a new resentencing under the 

framework established in chapter 2014-220, Laws of Florida.” Kelsey v. State, 

183 So. 3d 439, 442 (Fla. 1st DCA 2015).

In Graham v. Florida, 560 U.S. 48, 82 (2010), the United States Supreme 

Court held the following:

The Constitution prohibits the imposition of a life without 

parole sentence on a juvenile offender who did not commit 

homicide. A State need not guarantee the offender eventual 

release, but if it imposes a sentence of life it must provide him 

or her with some realistic opportunity to obtain release before 

the end of that term.

Subsequently, this Court in Henry v. State, 175 So. 3d 675, 676 (Fla. 2015), 

reviewed a district court decision holding that Graham “does not apply to term-ofyears prison sentences because such sentences do not constitute life 

imprisonment.” This Court disagreed and held “that Graham does apply and that 

the sentence at issue will not provide a meaningful opportunity for release.” Id. 

Specifically, this Court explained that “Graham requires a juvenile nonhomicide 

offender, such as Henry, to be afforded such an opportunity during his or her 

natural life.” Id. at 679. Then, this Court explained that, “[b]ecause Henry’s 

aggregate sentence, which totals ninety years and requires him to be imprisoned 

until he is at least nearly ninety-five years old, does not afford him this 

opportunity, that sentence is unconstitutional under Graham.” Id. at 679-80.
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In contrast to Henry, Kelsey was sentenced to an aggregate of forty five 

years for crimes he committed when he was fifteen years old. Because Kelsey’s 

term-of-years aggregate sentence is not a de facto life sentence, Kelsey will have a 

meaningful opportunity for release during his natural life. Therefore, Kelsey’s 

aggregate sentence does not violate Graham, and he is not entitled to resentencing. 

Cf. Henry, 175 So. 3d at 680 (“Because we have determined that Henry’s sentence 

is unconstitutional under Graham, we conclude that Henry should be resentenced 

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

Legislature in 2014, ch. 2014-220, Laws of Fla.”). 

Accordingly, I respectfully dissent.

LEWIS and CANADY, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Certified 

Great Public Importance 

First District - Case No. 1D14-518

(Duval County)

Nancy Ann Daniels, Public Defender, and Glen Phillip Gifford, Assistant Public 

Defender, Second Judicial Circuit, Tallahassee, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and 

Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida, 

for Respondent
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Julianne M. Holt, President, Tampa, Florida; and Jonathan Harris Greenberg, 

Assistant Public Defender, Miami, Florida,

for Amicus Curiae Florida Public Defender Association, Inc.

Paolo Giuseppe Annino of FSU College of Law Public Interest Law Center, 

Tallahassee, Florida; and Marsha L. Levick of the Juvenile Law Center, 

Philadelphia, Pennsylvania, 

for Amici Curiae FSU College of Law Public Interest Law Center, Juvenile 

Law Center, ACLU of Florida, CFFSY, The Center on Children and 

Families at UF, Children and Youth Law Clinic at UM, FACDL, FCF, 

FJRRP At FIU, FLS, National Association of Counsel for Children, 

NAFPD, NJDC, SJDC, and SPLC