ANTHONY MICHAEL ORTIZ , Appellant,

v. STATE OF FLORIDA , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 13

- 6229

__ ___________________________/ Opinion filed April 4, 2016. An appeal from the Circuit Court for Suwannee County

. David W. Fina , Judge

. Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee , for Appellant.
Pam ela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee , for Appellee.

BILBREY, J. Appellant Anthony M. Ortiz appeals his judgment of conviction and sentences for first degree murder, home invasion robbery while armed with a firearm, and tampering with evidence. Appellant was 16 years of age when these2 o ffenses were committed on April 28, 2012. We affirm A ppellant’s convictions; however, w e remand for resentenc ing on count 1, first degree murder

. We find no merit in A ppellant’s argument that the trial court erred in denying his motion in limine to exclude admission of a ski mask and gloves which were found in a bag with the murder weapon. Given the charge of home invasion robbery, such items were relevan t. See McDuffie v. State , 970 So. 2 d 312 (Fla. 2007) (explaining relevant evidence is evidence which tries to prove or disprove a material fact). We also find no merit in A ppellant’s argument that the trial court erred in excluding reverse Williams rule evidence , 1 since the proffered evidence was too dissim ilar to the defense claimed by A ppellant to be relevant . F urther, we find no basis to overturn the trial court’s finding that the proffered testimony was not believable.
As to the claim that the tria l court erred in denying A ppellant’s requ est for a
12

- person jury, this C ourt has already held that a 12

- person jury is not required when a defendant is charg ed with first degree murder if the offense was committed as a juvenile. Walling v. State , 105 So. 3d 660 (Fla. 1st DCA 20 13). Appellant
argues our decision in Walling constitutes an intrusion in to the dominion of the Florida L egislature which alone has the authority to define what constitutes a

1 Reverse Williams rule evidence is evidence offered by the defense pursuant to section 90.404(2), Florida Statutes. See Rivera v. State , 561 So. 2d 536 (Fla. 1990), and State v. Savino , 5 6 7 So. 2d 892 (Fla. 1990).3 capital offense. While it is true that first degree mur der is a capital felony pursuant
to section 782.04(1)(a ), and that section 913.10 mandates a 12

- person jury in “all capital cases,” a capital case for purposes of Chapter 913, Florida Statutes, is a case where the death penalty is legally possible. The de ath penalty has not been legally possible for an offense committed by a juvenile since Roper v. Simmons , 5 43 U.S. 551 (2005). The Florida Legislature plainly understands a capital ca se for purposes of chapter 913 i s one where the death penalty is possible as evidenced b y section 913.13 , which excludes from jury service in a capital case any person who has an opposition to the death penalty. Appellant’s last issue raises the constitutionality of the sentences he received. Appellant’s sentence s were impose d after Miller v. Alabama , 132 S. Ct. 2455 (2012 ), was decided. Miller declared unconstitutional any mandatory sentence of life without the possibility of parole imposed for a murder committed by a juvenile. In the wake of Miller , the Florida Legislature has amended the statutory sentencing scheme for juveniles

. Ch. 2014

- 220, Laws of Fla. 2 Under the revis ed law , a defendant who has been convicted of a capital homicide offense who “actually killed, intended to kill, or attempted to ki ll the victim” must receive a life sentence if the trial court determines that a life sentence is appropriate after

2 This law revised section 775.082, Florida Statutes, and added sections 921.1401 and 921.1402, Fl orida Statutes.4 considering certain factors in a separate sentencing proceeding. § 775.082(1)(b)1, Fla. Stat. While Chapter 2014

- 220 has an effective date of July 1, 2014, t he Florida Supreme Court has made the revised sentencing scheme retroactive to those sentences invalidated by Miller but imposed for offenses committed before the effective date of the new law

. Hors l e y v. State , 160 So. 3d 393 (Fla. 2015). While the Stat e did present some of the relevant criteria for senten cing under section 921.1401, Florida Statutes, in A ppella nt’s prior sentencing hearing, A ppellant did not receive the sort of individualized sentencing hearing mandated by Horsley and section 921.1401. Further, based on Horsley v. State , 121 So. 3d 1130 (Fla. 5th DCA 2013), the trial court believed it had no choice but to sentence A ppellant to life with the possibility of parole after 25 years. 3 As mentioned above , under the revised scheme, a sentence of 40 years or more is required

. § 775.082(1)(b) 1 , Fla.
Stat. Appellant is not entitled to parole since the Florida Supreme Court in Horsley explicitly rejected parole’s statutory revival. Id. , 160 So. 3d at 406

- 07. Furthermore, unless he has a disqua lifying conviction under section 921.1402(2)(a), Florida Statutes, Appellant will be entitled to the sentence review after 25 years as provided by section 921.1402, Florida Statutes , under Horsley

. Id

. at 408. Therefore, resenten cing is required as to co unt 1, first degree murder

.

3 The Fifth District’s decision in Horsley was quashed by the Florida Supreme Court after Appellant was sentenced. Horsley , 160 So. 3d at 409.5 As for A ppellant’s mandatory sente nce of fifty years for count 2, home invasion robbery with a fir earm , this C ourt’s decision in Kelsey v. State ,
__ So. 3d

__ , 40 Fla. L. Weekly D1291 (Fla. 1st DCA May 29, 2015), rev. granted , N o. SC15

- 2079 (Fla. Nov. 19, 2015), requires affirmance. While A ppellant argues that Henry v. State , 175 So. 3d 675 (Fla. 2015), requires resentencing, we have held that resentencing is required for a non

- homicide offense committed by a juvenile only if th e sentence imposed is life or the equivalent thereof. We have previously held that concurrent 50

- year terms for armed robbery and aggravated battery are not the functional equivalent of life sentences. Thomas v. State , 78 So. 3d 644 (Fla. 1st DCA 2011). 4 Thus, pursuant to Kelsey , we affirm the sentence for count
2. Accordingly, A ppellant’s convictions are AFFIRMED; his sentence for count 2 is also AFFIRMED; however, we vacate the sentence imposed for coun t 1 and remand for resentencing pursuant to Horsl ey . KELSEY, J., CONCURS; THOMAS, J

. , CONCURS IN PART WITH OPINION

.

4 We have also held that without a violation of Graham v. Florida , 560 U.S. 48 (2010), that is, without the improper imposition of a de facto life sentence, a defendant has no entitlement to the sentence review hearing added by Chapter 2014

- 220, Laws of Florida, i n section 921.1402, Florida Statutes

. See Kelsey ; Lambert v. State , 170 So. 3d 74 (Fla. 1st DCA 2015); and Abrakata v. State , 168 So. 3d 251 (Fla. 1st DCA 2015). We recognize the anomaly that the Appellant will receive a sentence review under section 921.1402(2)(a), for his first degree murder conviction but not for home invasion robbe ry while armed with a firearm

. Such is the current state of our precedent which we are bound to follow.6 THOMAS, J., concurring in part. I fully concur with the majority opinion, except as to the last two sentences of footnote four.