# Third District Court of Appeal

State of Florida

Opinion filed December 2, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-418

Lower Tribunal No. 04-31228 A

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### Davon Francis

, Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Thomas J.

Rebull

, Judge.

Eugene F. Zenobi, Regional Counsel, Office of Criminal Conflict and Civil

Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional

Counsel, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano

, Assistant Attorney

General, for appellee.

Before ROTHENBERG, LAGOA, and SCALES, JJ.

LAGOA, J.Appellant, Davon Francis (“Francis”), challenges his sentence for two

counts of armed robbery, one count of attempted armed robbery, and two counts of

aggravated assault with a firearm. Francis argues that the trial court erred in

sentencing him to an aggregate sentence of eighty-five years in prison because this

sentence is the functional equivalent of life without parole and thus violates the

reasoning of Graham v. Florida

, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010). The Florida Supreme Court recently held in Henry v. State

, 175 So. 3d

675 (Fla. 2015), that Graham ’s constitutional prohibition against cruel and unusual

punishment is implicated when a juvenile nonhomicide offender’s sentence does

not afford any meaningful opportunity to obtain release. Because Francis’s

convictions were for non-homicide offenses, which he committed when he was

seventeen years old, we are compelled to agree that Francis must be resentenced.

I. FACTUAL AND PROCEDURAL HISTORY

The evidence at trial established that Francis and his co-defendants were on

an armed crime spree the night of September 21, 2004. At approximately 6:00 pm,

that night, Francis approached three individuals at the corner of 189th Street and

N.W. 57th Avenue in Opa-locka. One of the individuals, Tracy Hunter (“Hunter”),

testified at trial that Francis put a gun in Hunter’s face, took a chain and ring from

Hunter, and left. At approximately 6:20 pm, Francis, along with co-defendants

Richard Latson (“Latson”) and Romlous Jacques (“Jacques”), approached

motorcyclist William Hernandez (“Hernandez”), who was stopped at the corner of

2154th Street and N.W. 27th Avenue. Hernandez testified at trial that Francis

pointed a gun at his face and told him to “get off the bike.” Hernandez attempted

to drive off, but was grazed in the pelvis by a bullet from Francis’s gun. At

approximately 6:40 pm, Francis and Latson approached Manuel Tejeda (“Tejeda”)

on 83rd Street and N.W. 27th Avenue. They attempted to take a chain from

Tejada, and shot him in the hand as Tejada ran away. Francis and Latson also shot

and injured Tejada’s neighbor, Javier Puerto (“Puerto”), in the back of the hip.

The police heard the gunshots from a nearby station and apprehended codefendants Francis, Latson, and Jacques.

Francis was originally convicted of three counts of attempted second-degree

murder, two counts of armed robbery, one count of attempted armed robbery, and

two counts of aggravated assault with a firearm. We upheld the judgment and

sentence in Francis v. State

, 22 So. 3d 788 (Fla. 3d DCA 2009). Subsequently, in

light of the Florida Supreme Court’s decision in State v. Montgomery

, 39 So. 3d

252 (Fla. 2010), which held that an inaccurate instruction on manslaughter as a

lesser-included offense only one step removed constitutes fundamental error, we

vacated Francis’s conviction for the attempted second-degree murder counts in

Francis v. State

, 77 So. 3d 806 (Fla. 3d DCA 2011). On remand, the State

abandoned the attempted second-degree murder charges.

Francis subsequently filed a Motion to Correct Illegal Sentence pursuant to

the United States Supreme Court’s decision in Graham v. Florida

, 560 U.S. 48, 130

3S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In Graham

, the Supreme Court invalidated

life sentences for juveniles convicted of nonhomicide offenses and held that those

offenders must be provided a meaningful opportunity to obtain release. 560 U.S.

at 82. Because Francis was a juvenile at the time of the offense, the trial court

granted his motion and vacated his life sentences for the armed robbery counts.

The trial court resentenced Francis to a term of thirty years for each armed robbery

count, but his term-of-years remained the same on the remaining counts (fifteen

years for the attempted armed robbery count and five years for each aggravated

assault with a firearm count). The trial court ordered the sentences on each count

to run consecutively, resulting in an aggregate sentence of eighty-five years. This

appeal followed.

II. ANALYSIS

In Henry v. State

, 175 So. 3d 675 (Fla. 2015), the Florida Supreme Court

ruled “that the constitutional prohibition against cruel and unusual punishment

under Graham is implicated when a juvenile nonhomicide offender’s sentence does

not afford any ‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.’” 175 So. 3d at 679 (quoting Graham

, 560 U.S. at 75);

see also Gridine v. State

, 175 So. 3d 672, 674-75 (Fla. 2015) (holding that a

seventy-year sentence imposed on a juvenile who was fourteen years old at the

time he was charged was “unconstitutional because it fail[ed] to provide [the

juvenile] with a meaningful opportunity for early release based upon a

4demonstration of his maturity and rehabilitation”). Henry, a juvenile, was

convicted for committing multiple nonhomicide offenses, including three counts of

sexual battery with a deadly weapon, one count of kidnapping, two counts of

robbery, one count of carjacking, one count of burglary of a dwelling, and one

count of possession of cannabis. Henry was sentenced to life for the sexual battery

offenses, plus an additional sixty years’ imprisonment for the remaining offenses,

to run consecutively. During the pendency of Henry’s appeal, the United States

Supreme Court issued its decision in Graham

, and Henry filed a rule 3.800(b)(2)

motion predicated on the Graham holding. Henry was resentenced to concurrent

thirty-year sentences for the sexual batteries; the remaining sentences were ordered

to run consecutively, totaling ninety years’ imprisonment. The Fifth District Court

of Appeal affirmed Henry’s aggregate term-of-years sentence as “not invalid under

the Eighth Amendment.” 175 So. 3d at 676 (quoting Henry v. State

, 82 So. 3d

1084, 1089 (Fla. 5th DCA 2012)).

On review, the Florida Supreme Court concluded that Graham prohibits the

States from sentencing juvenile nonhomicide offenders to prison terms that do not

provide these offenders with a meaningful opportunity for release. The Florida

Supreme Court noted, “we believe that the Graham Court had no intention of

limiting its new categorical rule to sentences denominated under the exclusive term

of ‘life in prison.’” Henry

, 175 So. 3d at 680.

5Accordingly, under the rule articulated in Henry

, Francis’s term-of-years

sentence is unconstitutional. Pursuant to Henry

, an eighty-five year prison

sentence with four counts running consecutively does not provide Francis with a

meaningful opportunity to obtain future early release during his natural life. See

Morris v. State

, 40 Fla. L. Weekly D1948 (Fla. 2d DCA Aug. 21, 2015) (citing

Henry and Gridine in holding that a sixty-five-year sentence was unconstitutional

because it did not provide the defendant with a meaningful opportunity for

release).

The State argues that neither Graham nor Henry should automatically be

applied to aggregate term-of-years sentences that amount to life in prison.

Specifically, as it relates to Francis, the State posits that because Francis’s offenses

occurred in distinct criminal episodes with multiple victims, at different times, and

in different locations, the analysis and reasoning behind Henry is not applicable.

We do not find the State’s attempt to distinguish Francis’s case from Henry

persuasive. The Florida Supreme Court did not expressly limit its decision in

Henry to sentences for nonhomicide offenses involving a single victim. Rather,

Henry stated that the Graham decision “intended to ensure that the states would

provide all juvenile nonhomicide offenders who were sentenced to life terms of

imprisonment with meaningful future opportunities to demonstrate their maturity

and rehabilitation.” Henry

, 175 So. 3d at 679 (citing Graham

, 560 U.S. at 79

(noting that the “categorical rule gives all juvenile nonhomicide offenders a chance

6to demonstrate maturity and reform”)). Henry ’s adoption of Graham ’s admonition

that States must give juvenile nonhomicide offenders some meaningful opportunity

to obtain release does not limit the scope of the decision to only juveniles who

commit one felony against one victim. Graham

, 560 U.S. at 75. As such, we are

bound by Henry and must reverse Francis’s eighty-five-year sentence and remand

for resentencing.

III. CONCLUSION

Accordingly, on remand, Francis “must be resentenced under the provisions

of chapter 2014-220, Laws of Florida, in conformance with the holdings of Henry

and Horsley v. State

, 160 So. 3d 393 (Fla. 2015), which determined that chapter

2014-220 is applicable to all juvenile offenders whose sentences are

unconstitutional under Miller and Graham .” Morris

, 40 Fla. L. Weekly D1948.

See §§ 775.082, 921.1401, 921.1402, Fla. Stat. (2014); Gridine

, 175 So. 3d at 675

(remanding Gridine’s case to the sentencing court to conduct proceedings “in

accordance with Henry ”); Barnes v. State

, 175 So. 3d 380 (Fla. 5th DCA 2015)

(citing Henry in remanding for resentencing in accordance with Florida’s 2014

juvenile sentencing legislation); cf. Abrakata v. State

, 168 So. 3d 251, 252 (Fla. 1st

DCA 2015) (noting that “absent a violation of Graham

, there is no legal basis to

retroactively apply section 921.1402 (or any other provision of the juvenile

sentencing legislation enacted in 2014) to the 2011 offense in this case”). We

therefore reverse and remand to the trial court to conduct an individualized

7sentencing hearing and to sentence Francis to a term-of-years. If Francis is

sentenced to a term-of-years in excess of twenty years, he is entitled to a

subsequent judicial review of his sentence. §§ 775.021(3)(c), 921.1402(2)(d), Fla.

Stat. (2014).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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