Ronnie BRUCE, Appellant, v. The STATE of Florida, Appellee.

No. 3D17-1436

District Court of Appeal of Florida, Third District.

Opinion filed June 20, 2018

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

Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.

Before ROTHENBERG, C.J., and LAGOA and LUCK, JJ.

ROTHENBERG, C.J.

In 1972, Ronnie Bruce ("Bruce") was convicted after a jury trial of robbery, assault with the intent to commit murder, and unlawful possession of a firearm while engaged in a criminal offense, and he was sentenced to life in prison with the possibility of parole. Because Bruce was a juvenile at the time he committed these offenses, he filed a motion to vacate his sentence on April 27, 2017, arguing that, based on the Florida Supreme Court's decisions in *Atwell v. State*, 197 So.3d 1040 (Fla. 2016), *Kelsey v. State*, 206 So.3d 5 (Fla. 2016), and *Johnson v. State*, 215 So.3d 1237 (Fla. 2017), his life with parole sentence for a non-homicide offense committed as a juvenile was unlawful. The trial court found that because Bruce was released on parole in 2016 and is still at liberty on parole, his sentence is not unconstitutional, and, therefore, Bruce was not entitled to postconviction relief. We agree and affirm.

Our affirmance is controlled by this Court's decisions in *Vennisee v. State*, 235 So.3d 947 (Fla. 3d DCA 2017), and *Rooks v. State*, 224 So.3d 272 (Fla. 3d DCA 2017), *183and supported by *Rogers v. State*, 223 So.3d 281 (Fla. 4th DCA 2017), and *Currie v. State*, 219 So.3d 960 (Fla. 1st DCA 2017). In each of these cases, the defendant was a juvenile at the time the offense was committed, sentenced to life in prison with the possibility of parole, and paroled. And in each of these cases, because the defendant was provided with a meaningful opportunity to obtain release and was actually released on parole, it was determined that *Miller v. Alabama*, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), *Graham v. Florida*, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and *Atwell*, 197 So.3d 1040 (Fla. 2016), were not implicated and that, therefore, the defendant was not entitled to resentencing because the sentence was not cruel and unusual under the Eighth Amendment. *See* *Vennisee*, 235 So.3d at 951.

Bruce's appellate counsel concedes that the trial court's ruling and this Court's decision on appeal is controlled by *Rooks* (and is now also controlled by *Vennisee*, which was issued after Bruce's initial brief was filed), which mandates an affirmance in this case. He, however, noted that Rooks had petitioned the Florida Supreme Court to review this Court's decision, and the Florida Supreme Court had not rendered a decision on whether to accept jurisdiction of his case. Thus, Bruce's appellate counsel requests that if this Court affirms the trial court's order, that we place Bruce's case "in the pipeline" for review before the Florida Supreme Court. However, subsequent to the filing of Bruce's initial brief, the Florida Supreme Court declined to accept jurisdiction in *Rooks*. *See* *Rooks v. State*, SC17-1342, 2017 WL 5983896 (Fla. Dec. 4, 2017). The Florida Supreme Court has also declined to accept jurisdiction in *Vennisee*. *See* *Vennisee v. State*, SC18-221, 2018 WL 2383282 (Fla. May 25, 2018).

We therefore affirm the trial court's order denying Bruce's motion for postconviction relief on the authority of *Vennisee* and *Rooks*.

Affirmed.