NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT LAISHA L. LANDRUM, ) ) Appellant, ) ) v. ) Case No. 2D14-2842 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed May 20, 2015. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; William Fuente, Judge. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defendant, Bartow, for Appellee.

WALLACE, Judge. Laisha L. Landrum timely appeals the order summarily denying h er motion filed under Florida Rule of Criminal Procedure 3.800(a). We af firm, but we write to discuss an apparent sentencing in congruity that now exists in t his district. In 2005, a jury found Ms. Landrum guilty of second-degree murd er with a weapon, a life felony, §§ 775.087(1)(a), 782.04(2), Fla. Stat. (2004), and tampering with physical evidence, and the trial court sentenced her to life in prison for the murder- 2 - charge and five years' imprisonment for the tampering charge. 1 After an unsuccessful appeal, Ms. Landrum, who was a juvenile at the time of the offe nses, filed a rule 3.800(a) motion arguing that her sentence of life without the p ossibility of parole 2 for second-degree murder violated the holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), that a mandatory life sentence without the possibility of parol e for a juvenile who commits a homicide is unconstitutional. The postconviction cou rt found that Miller did not apply retroactively and denied Landrum's motion. On appeal , this court reversed based on the then-recent decision in Toye v. State, 133 So. 3d 540 (Fla. 2d DCA 2014), that Miller does apply retroactively and remanded for further p roceedings. 3 On remand, the State filed a motion to strike Ms. Landrum's re sentencing hearing. The State urged the postconviction court to deny her rule 3.800 motion, arguing that this court's opinion did not require resentencing and that Ms. Landrum was not sentenced to the mandatory life term condemned in Miller. The postconviction court granted the State's motion, relying on this court's opinion in Starks v. State, 128 So. 3d 91 (Fla. 2d DCA 2013), 4 as well as Mason v. State, 134 So. 3d 499 (Fla. 4th DCA 2014), review dismissed, No. SC14-1839, 2014 WL 7177470 (Fla. D ec. 16, 2014),

1 Ms. Landrum's sentence of life in prison was imposed on Februar y 20, 2006.

2 For persons convicted on or after October 1, 1983, there is no parole from a life sentence in Florida. See § 921.001(10), Fla. Stat. (2004); Lewis v. State, 625 So. 2d 102, 103 (Fla. 1st DCA 1993).

3 Since this court decided Toye, the Florida Supreme Court has he ld that Miller must be given retroactive effect. Falcon v. State, 40 F la. L. Weekly S151 (Fla. Mar. 19, 2015).

4 Starks was recently disapproved on other grounds in Lawton v. S tate, 40 Fla. L. Weekly S195 (Fla. Apr. 9, 2015).- 3 - which relied on Starks. Starks, like Landrum, was convicted of second-degree murder with a weapon, a life felony punishable by life or a term of ye ars not exceeding life. See §§ 775.082(3), 775.087(1)(a), 782.04(2), Fla. Stat. (2004). Be cause a life sentence was not mandatory, this court held that a juvenile's life sentence without the possibility of parole for second-degree murder with a firearm is not unconstit utional under Miller. 128 So. 3d at 92. On the authority of Starks, Ms. Landrum's senten ce, like Starks', is not unconstitutional, and we affirm th e postconviction court's orde r denying her rule 3.800(a) motion. Since Starks issued, the legislature enacted chapter 2014-220, Laws of Florida, and the Florida Supreme Court decided Horsley v. State , 40 Fla. L. Weekly S155 (Fla. Mar. 19, 2015). The portions of the legislation per tinent here are sections 1, 2, and 3, which have been codified as an amendment and as new s tatutes at sections 775.082, 921.1401, and 921.1402 of the Florida Statutes. "Sect ion one provides the new statutory penalties for juvenile offenders; section two set s forth the procedures for the mandatory individualized sentencing hearing that is now req uired before sentencing a juvenile to life imprisonment; and section three relates to s ubsequent judicial review of a juvenile offender's sentence." Horsley, 40 Fla. L. Weekly at S158. The effective date of the new legislation is July 1, 2014. Ch. 2014-220, § 8, at 2877, Laws of Fla. In Horsley, the Florida Supreme Court held that the appropriate re medy for juvenile offenders whose sentences violate the Eighth Amendment based on Miller is to apply the provisions of chapter 2014-220 to such juvenile offenders w ithout regard to the date that the offenses were committed. 40 Fla. L. Weekly at S160.- 4 - The concurrence of the Florida Supreme Court's holding in Hors ley with our holding in Starks has created an apparent sentencing anomal y in this district—a juvenile convicted of first-degree murder enjoys the right to e ventual review of his or her sentence without regard to the date of his or her offense while a juvenile convicted of second-degree murder and sentenced to life before the effective date of the new legislation does not. This circumstance also raises the questi on whether those juveniles convicted of second-degree mur der and sentenced to life impriso nment before July 1, 2014, are entitled to the individualized sentencing hearing cal led for in Miller. 5 Miller, who was fourteen years of age at the time he committed murder, was sentenced to a mandatory life sentence without the possibil ity of parole. The Supreme Court found that its hol dings in Roper v. Simmons, 543 U.S. 551 (2005)—that the Eighth Amendment bars the death penalty for all juvenile of fenders under the age of eighteen—and Graham v. Florida, 560 U.S. 48 (2010)—that the Eig hth Amendment bars a sentence of life without the possibility of parole for j uveniles convicted of nonhomicide offenses—led to the conclusion that the Eighth Amen dment bars a mandatory sentence of life without parole for juveniles convict ed of homicide. While the Court did not foreclose a sentencing court's ability to impose a life-without-parole sentence on a juvenile, it required that before doing so, the c ourt must "take into

account how children are differ ent, and how those differences c ounsel against irrevocably sentencing them to a lifetime in prison." Miller, 132 S. Ct. at 2469. This is because the characteristics of y outh, "transient rashness, proc livity for risk, and inability

5 In Daugherty v. State, 96 So. 3d 1076 (Fla. 4th DCA 2012), revi ew granted, No. SC14-860, 2014 WL 7251739 (Fla. Dec. 17, 2014), th e Fourth District reversed a juvenile's life sentence for second-degree murder an d remanded for an individualized sentencing hearing in accordance with Miller.- 5 - to assess consequences—both lessen[ ] a child's 'moral culpabil ity' and enhance[ ] the prospect that, as the years go by and neurological development occurs, his 'deficiencies will be reformed.' " Id. at 2465 (quoting Graham, 560 U.S. at 68). The Court anticipated that its decision to require "i ndividualized sentencing," id. a t 2466 n.6, would render the imposition of "this harshest possible penalty [on juveniles]" u ncommon, id. at 2469. "[T]his harshest possible penalty" has been imposed on Ms. Lan drum even though she was not convicted of the highest possible degre e of murder. This circumstance raises the question whether the logic of the Horsl ey court's application of the procedures outlined in chapt er 2014-220 to address the Eigh th Amendment violation identified in Miller requires the application of that same reme dy to persons such as Ms. Landrum, who have been found guilty of second-degree murder and sentenced to life in prison without the possibility of parole before the effective d ate of the new legislation. On the authority of our decision in Starks, we are compelled to answer this question in the negative. However, we certify the following question to th e Florida Supreme Court as one of great public importance:

BECAUSE THERE IS NO PAROLE FROM A LIFE SENTENCE IN FLORIDA, DOES MILLER V. ALABAMA, 132 S.Ct. 2455 (2012), REQUIR E THE APPLICATION OF THE PROCEDURES OUTLINED IN SECTIONS 775.082, 921.1401, and 921.1402, FLORIDA STATUTES (2014), TO JUVENILES CONVICTED OF SECOND-DEGREE MURDER AND SENTENCED TO A NON-MANDATORY SENTENCE OF LIFE IN PRISON BEFORE THE EFFECTIVE DATE OF CHAPTER 2014-220, LAWS OF FLORIDA? Affirmed; question certified.

CASANUEVA and BLACK, JJ., Concur.