DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NOELSON ANDREVIL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-4700

[August 16, 2017]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert E. Belanger, Judge; L.T. Case No. 

562008CF003023D.

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

This appeal challenges concurrent 35-year prison sentences imposed 

on a juvenile offender on resentencing after the United States Supreme 

Court decided Graham v. Florida, 560 U.S. 48 (2010), and the Florida 

Legislature enacted chapter 2014-220, Laws of Florida. We reverse 

appellant’s sentences and affirm as to the other points raised on appeal.

In 2008, appellant was 17 years old when he was charged as an adult 

with attempted armed robbery while wearing a mask (Count I), burglary of 

a dwelling with an assault or battery while armed (Count II), robbery with 

a weapon while wearing a mask (Count III), and robbery with a deadly 

weapon while wearing a mask (Count IV). In 2010, appellant entered a no 

contest plea to Counts II–IV and was sentenced to 35 years in prison, 

followed by ten years of probation on Counts II and IV, and to 30 years in 

prison on Count III, concurrent with the sentences on Counts II and IV. 

The state entered a nolle prosequi on Count I.
2

Ten days after appellant’s sentence, the United States Supreme Court 

decided Graham. Graham held that the Eighth Amendment prohibits life 

sentences without parole for juvenile offenders who commit nonhomicide 

crimes. Graham, 560 U.S. at 74–75. The Court noted that there were 

fundamental differences in development and reasoning between juveniles 

and adults, including a juvenile’s (1) lack of maturity and underdeveloped 

sense of responsibility; (2) vulnerability to negative influences and outside 

pressures; and (3) character that is not as well formed as that of adults. 

Id. at 68 (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). The 

Court thus held that states must give such juvenile offenders “some 

meaningful opportunity to obtain release based on demonstrated maturity 

and rehabilitation.” Id. at 75.

In light of Graham, in May 2011, appellant moved for postconviction 

relief. He argued, among other things, that his trial counsel was ineffective 

for failing to inform him that he could have withdrawn his plea due to the 

material change in the law following Graham. After an evidentiary hearing, 

the trial court ruled that appellant’s trial counsel was ineffective for failing 

to file a motion to withdraw appellant’s plea after Graham was decided.

In August 2014, appellant was 23 years old when he again pled no 

contest to the charges against him. This time, appellant pled to armed 

burglary with an assault or battery (Count II) and robbery with a deadly 

weapon (Count IV). The state nolle prossed Counts I and III. Following 

the sentencing hearing, in November 2014, the court adjudicated 

appellant and sentenced him to concurrent terms of 35 years in prison, 

followed by ten years of probation, with credit for 1,933 days.

Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 

3.800(b)(2) with the sentencing court, arguing that he should have been 

sentenced based on the guidelines in Graham and section 921.1402(2)(d), 

Florida Statutes (2014). The trial court denied the motion because 

appellant’s offense predated the July 1, 2014 offense date stated in section 

921.1402, and because appellant’s sentence was not a de facto life 

sentence subject to the requirements of Graham.

On appeal, appellant argues that the 35-year prison sentence, followed 

by ten years of probation, does not afford a meaningful opportunity for

early release based on a demonstration of maturity and rehabilitation and,

thus, violates the Eighth Amendment’s ban on cruel and unusual 

punishment.

In appellant’s initial brief, he argued that his concurrent 35-year 

sentences constitute a de facto life sentence, based on mortality statistics, 
3

quality of life measures, and the lack of a meaningful opportunity for 

release based on maturity and rehabilitation. As such, appellant argued 

that he should be resentenced with retroactive application of the new 

juvenile sentencing legislation enacted by the Florida Legislature in 

chapter 2014-220, Laws of Florida.1 See Horsley v. State, 160 So. 3d 393,

395, 404–06 (Fla. 2015) (holding that the appropriate remedy for cases 

involving juvenile offenders whose sentences are unconstitutional under 

Miller v. Alabama, 567 U.S. 460 (2012) is to apply chapter 2014-220, Laws 

of Florida, even if their offenses were committed prior to the legislation’s 

effective date).

During much of the pendency of this appeal, the law in Florida 

regarding Graham’s application to term-of-years sentences was uncertain. 

Several Florida districts courts, including ours, had concluded that 

Graham does not apply to lengthy term-of-years sentences which do not 

constitute de facto life sentences requiring resentencing under chapter 

2014-220. See, e.g., Davis v. State, 199 So. 3d 546, 550 (Fla. 4th DCA 

2016) (holding that a defendant’s 75-year sentence does not constitute a 

de facto life sentence because the defendant has a meaningful opportunity 

for release during his natural life); Abrakata v. State, 168 So. 3d 25, 251, 

251-52 (Fla. 1st DCA 2015) (finding that a juvenile’s 25-year sentence, 

day-for-day, does not amount to a de facto life without parole sentence 

since the defendant will be in his early forties when he is released from 

prison and declining to retroactively apply the sentencing provisions of 

chapter 2014-220, Laws of Florida); Austin v. State, 127 So. 3d 1286, 1287

(Fla. 1st DCA 2013) (affirming juvenile’s 45-year mandatory minimum 

terms because it did not exceed his life expectancy); Johnson v. State, 108 

So. 3d 1153, 1153-54 (Fla. 5th DCA 2013) (Johnson 1) (affirming a 

juvenile’s 100-year sentence on a charge of burglary of a dwelling while 

armed because a term-of-years sentence does not violate Graham); Thomas 

v. State, 78 So. 3d 644 (Fla. 1st DCA 2011) (affirming juvenile’s concurrent 

50-year sentences with 25-year mandatory minimums because the 

sentence does not amount to a life without parole sentence even though 

the juvenile will be in his late sixties when released from prison). But see

Floyd v. State, 87 So. 3d 45 (Fla. 1st DCA 2012) (reversing a juvenile’s 

combined 80-year sentence for two counts of armed robbery, concluding 

1 The juvenile sentencing provisions in chapter 2014-220 were enacted in 2014 

in response to Graham and Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding 

that “the Eighth Amendment forbids a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile offenders”), and provided judicial 

review for juvenile offenders who were tried as adults and received prison terms 

longer than 20 years.
4

that it constitutes the functional equivalent of a life sentence and is 

therefore unconstitutional under Graham);.

In Henry v. State, 175 So. 3d 675 (Fla. 2015), the Florida Supreme 

Court quashed the Fifth District’s decision in Henry v. State, 82 So. 3d 

1084 (Fla. 5th DCA 2012), which had determined that Graham did not 

apply to term-of-years prison sentences because such sentences do not 

constitute life imprisonment. Henry, 175 So. 3d at 676. Our supreme 

court disagreed with the Fifth District, reasoning that Graham is 

implicated when the sentence does not afford any “meaningful opportunity 

to obtain release based on demonstrated maturity and rehabilitation.” Id. 

at 679 (quoting Graham, 560 U.S. at 75). The supreme court concluded 

that Henry’s aggregate 90-year sentence, which required him to be 

imprisoned until he was at least about 95 years old, did not afford a 

meaningful opportunity for release during his natural life, and was 

therefore unconstitutional under Graham. Id. at 679–80.

The Henry court further noted that a de facto life sentence is not a 

requirement for review and emphasized that the focus in these cases 

should not be on the length of the sentence imposed, but rather on 

whether the sentence affords a “meaningful opportunity for early release 

based on a demonstration of maturity and rehabilitation.” Id. at 680 

(citing Graham, 560 U.S. at 75). The court concluded that “the Eighth 

Amendment will not tolerate prison sentences that lack a review 

mechanism for evaluating this special class of offenders for demonstrable 

maturity and reform in the future because any term of imprisonment for 

a juvenile is qualitatively different than a comparable period of 

incarceration is for an adult.” Id. Accordingly, the court remanded 

Henry’s cases for resentencing under chapter 2014-220. Id.

In appellant’s supplemental brief, filed after the Florida Supreme 

Court’s decision in Kelsey v. State, 206 So. 3d 5 (Fla. 2016), appellant 

argued that a finding of a de facto life sentence was not determinative of 

his entitlement to resentencing under chapter 2014-220. He contended 

that Kelsey clarified that Graham applies to term-of-years sentences that 

may not be equivalent to life sentences and requires that juveniles who are 

serving lengthy sentences be given periodic judicial review to determine 

whether they can demonstrate maturity and rehabilitation.

Kelsey held that a juvenile defendant whose original sentence violated 

Graham and who was subsequently resentenced prior to July 1, 2014 was 

entitled to be resentenced pursuant to the provisions of chapter 2014-220. 

Kelsey, 206 So. 3d at 10-11. In Kelsey, the juvenile defendant was 

originally sentenced to two life sentences and two concurrent 25-year 
5

terms for nonhomicide offenses. Id. at 6. After Graham, he was 

resentenced to concurrent 45-year sentences. Id. at 7. On appeal, he

asked the court to vacate those sentences and resentence him under the 

new juvenile sentencing legislation with a review mechanism, consistent 

with the Florida Supreme Court’s decision in Henry. See Kelsey v. State, 

183 So. 3d 439, 441 (Fla. 1st DCA 2015). The First District denied his 

request for relief, reasoning that his 45-year sentence was not a de facto 

life sentence in violation of Graham. Id. at 441–42. As discussed above,

the Florida Supreme Court later disagreed and held that he was entitled 

to resentencing and judicial review. Kelsey, 206 So. 3d at 10-11.

In Kelsey, the Florida Supreme Court explained that its holding in 

Henry “was not predicated on the term of the sentence but rather on the 

status of, and the opportunity afforded, the offender.” Id. at 9. The court 

described its decision in Henry as “unequivocal” and reaffirmed that the 

special class of juvenile nonhomicide offenders recognized in Graham 

should receive the remedy outlined in Horsley.2 Id. at 9–10. The court in 

Kelsey considered the decisions in Henry, Horsley and Thomas, along with 

the Legislature’s intent in passing chapter 2014-220, Laws of Florida, and 

determined that “juveniles who are serving lengthy sentences are entitled 

to periodic judicial review to determine whether they can demonstrate 

maturation and rehabilitation.” Id. at 10-11.

We recently applied Kelsey to reverse a juvenile’s 45-year sentence. See

O’Neal v. State, 211 So. 3d 303, 304 (Fla. 4th DCA 2017) (holding that a 

defendant whose original sentence violated Graham, and who was 

subsequently resentenced prior to July 1, 2014, is entitled to be 

resentenced pursuant to the provisions of chapter 2014–220, Laws of 

Florida).3

Recently, the Florida Supreme Court resolved the conflict between

Johnson I and Floyd. See Johnson v. State, 215 So. 3d 1237 (Fla. 2017)

(Johnson II). As mentioned above, in Floyd, the First District reversed a 

juvenile’s combined 80-year sentence for two counts of armed robbery, 

concluding that the sentence constitutes the functional equivalent of a life 

2 In Horsley, our supreme court concluded that applying chapter 2014-220 to all 

juvenile offenders whose sentences are unconstitutional under Miller is the 

proper remedy to give effect to the commandment of the United States Supreme 

Court in Miller. 160 So. 3d at 395, 405.

3 We have also certified to the Florida Supreme Court the question of whether 

chapter 2014-220 is triggered by all juvenile sentences that exceed the statutory 

threshold, including offenses committed before July 1, 2014. See Davis, 199 So. 

3d at 552.
6

sentence and violates Graham. 87 So. 3d at 45–47. By contrast, in 

Johnson I, the Fifth District affirmed a juvenile’s 100-year sentence for two 

counts of armed robbery, holding that Graham does not apply to term-ofyears sentences. 108 So. 3d at 1153–54. After considering Graham and 

its decisions in Henry and Kelsey, the supreme court quashed the Fifth 

District’s decision. Johnson II, 215 So. 3d at 1244. The court concluded 

that the sentence imposed in Johnson I did not provide the juvenile 

nonhomicide offender a meaningful opportunity for early release based on 

maturity and rehabilitation during his natural life. Id.

Based on Johnson II and the rationale underlying Henry and Kelsey, 

we conclude that appellant must be afforded periodic review under chapter

2014-220, Laws of Florida. Johnson II stated that its holding in Henry

“was not predicated on the term of the sentence, but on the status of, and 

the opportunity afforded, the offender.” 215 So. 3d at 1240. Johnson II 

noted that the length of the sentence alone is not dispositive because “any 

term of imprisonment for a juvenile is qualitatively different than a 

comparable period of incarceration is for an adult.” Id. at 1239–40 (citing 

Henry, 175 So. 3d at 680). Johnson II further disagreed that gain time 

could satisfy the requirements of Graham because this avenue of early 

release is not adequately based on a juvenile’s demonstration of maturity 

and rehabilitation. Id. at 1239, 1242.

In Johnson II, the supreme court further clarified its position in Kelsey

that Graham “does indeed apply to term-of-years sentences” and that such 

sentences need not be “de facto life” sentences. Id. at 1240 (quoting 

Kelsey, 206 So. 3d at 10). Here, the trial court denied appellant’s 

postconviction motion to be sentenced under section 921.1402(2)(d), 

Florida Statutes, because his offense predated July 1, 2014 and because 

appellant’s 35-year sentence was not a de facto life sentence. However, 

like the sentences in Kelsey and Johnson II, appellant’s post-Graham

sentences were based on offenses he committed before the statute’s July 

1, 2014 effective date, and while he was a juvenile. Moreover, unlike the 

defendant in Kelsey, appellant was resentenced after the July 1, 2014 

effective date of chapter 2014-220. We thus conclude that appellant was 

entitled to the benefit of the new sentence review statute and a meaningful 

opportunity for release based on demonstrated maturity and 

rehabilitation, as detailed in Johnson II.

Accordingly, we reverse appellant’s sentence and remand for 

resentencing in accordance with the sentencing procedures set forth in 

chapter 2014-220, Laws of Florida, as codified in sections 921.1401 and 

921.1402, Florida Statutes.
7

Affirmed in part, Reversed in part and Remanded.

CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.