NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ROBERT STERN, )

)

Appellant, )

)

v. ) Case No. 2D17-2718

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed March 9, 2018.

Appeal pursuant to Fla. R. App. P. 

9.141(b)(2) from the Circuit Court for Polk 

County; Neil A. Roddenbery, Judge.

Robert Stern, pro se.

MORRIS, Judge.

Robert Stern appeals the summary denial of his motion to correct illegal 

sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm for 

the reasons expressed below.

In February 2017, Stern filed his 3.800(a) motion, claiming that his life 

sentence for sexual battery is illegal under Graham v. Florida, 560 U.S. 48 (2010), Miller 

v. Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). He 
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alleged that he was sixteen years old when the offense was committed in 1967 and that 

his sentence of life in prison for a nonhomicide offense is illegal.

The postconviction court denied Stern's motion, concluding that the law he 

relies upon is not applicable to him:

[Stern] does not claim or state that his sentence is in anyway 

comparable to Atwell's, such that his sentence is the 

practical equivalent of a life sentence without the possibility 

of parole. However, as the state's response and 

attachment's show, [Stern] has actually been released on 

parole on two prior occasions, and has a current 

presumptive parole release date approximately 10 years 

from the date of this order. [Stern's] sentence not only has 

actually provided him with multiple meaningful opportunities 

for release, but continues to do so. Therefore, Atwell and 

the preceding case law upon which it was based are not 

applicable to [Stern].

In Graham, the Supreme Court held that a juvenile's sentence of life in 

prison without the possibility of parole for a nonhomicide offense is unconstitutional. 

560 U.S. at 74. In Miller, the Supreme Court further held that a sentencing scheme that 

mandates a juvenile's sentence of life in prison without the possibility of parole for a 

homicide offense is unconstitutional. 132 S. Ct. at 2469. In Henry v. State, 175 So. 3d 

675, 680 (Fla. 2015), the Florida Supreme Court held that Graham prohibited an 

aggregate ninety-year juvenile sentence for a nonhomicide offense because it did not 

afford a meaningful opportunity for the juvenile to obtain release. In Atwell, 197 So. 3d 

at 1050, the Florida Supreme Court held that a juvenile's mandatory sentence of life in 

prison for murder, with the possibility of parole after twenty-five years, was 

unconstitutional because his presumptive parole release date under the applicable 

parole guidelines was not for 140 years and his sentence thus resembled a mandatorilyimposed sentence of life without parole. 
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The above holdings are not applicable to Stern because he was 

sentenced to life in prison with the possibility of parole and he was released on parole 

twice. Recently, the Third District rejected the same claim that Stern made in his rule 

3.800(a) motion. See Rooks v. State, 224 So. 3d 272 (Fla. 3d DCA 2017). The 

defendant in Rooks pleaded guilty to sexual battery in 1971 and was sentenced to life in 

prison with the possibility of parole. He was released on parole twice but violated parole 

and returned to prison. Id. at 273. He claimed he was entitled to resentencing under 

Graham/Miller and Atwell/Henry. The Third District noted that Miller and Graham 

"established the threshold which must be met before an Eighth Amendment challenge 

can be raised in this context: the juvenile offender must be sentenced to life without the 

possibility of parole." Id. at 275. The court concluded that the defendant could not meet 

this threshold "because he was not sentenced to life without parole, but rather was 

sentenced to life with parole." Id. at 276.

Turning to Atwell and Henry, the Rooks court held that those Florida cases 

were distinguishable because the defendants in those cases received either an 

"effective life without parole sentence" or an "aggregate ninety-year sentence which 

failed to afford a meaningful opportunity for early release during his natural life." Id. at 

278. The Rooks court noted that "the parole system and guidelines applicable to Rooks 

provided broader discretion in determining whether and when he would be released," as 

evidenced by his release after serving only eight-and-a-half years of his life sentence. 

Id. The court reasoned that 

[i]t would appear contrary to both logic and jurisprudence to 

hold that this case is controlled by the Graham/Miller or 

Henry/Atwell line of cases, given that Rooks cannot make 

the threshold showing that he received a life without parole 
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sentence, a sentence that effectively resembles a life without 

parole sentence, or a sentence that failed to afford him a 

meaningful opportunity to obtain early release during his 

natural life.

Because Rooks' sentence cannot satisfy this 

threshold, we conclude that it is not subject to Eighth 

Amendment challenge under Graham/Miller or Henry/Atwell.

Id. at 279 (footnote omitted); see also Vennisee v. State, 42 Fla. L. Weekly D2170 (Fla. 

3d DCA Oct. 11, 2017) (holding that defendant sentenced as a juvenile to life in prison 

with possibility of parole was not entitled to relief where he had been released on parole 

and his parole was revoked because he committed a new offense as an adult).

The First and Fourth Districts held similarly in Currie v. State, 219 So. 3d 

960 (Fla. 1st DCA 2017), and Rogers v. State, 223 So. 3d 281 (Fla. 4th DCA 2017). In 

Currie, the defendant was sentenced to life in prison with the possibility of parole for the 

offense of sexual battery with a firearm. 219 So. 3d at 960. The First District rejected 

his claim that he was entitled to be resentenced under Atwell and Henry because he 

"was afforded a meaningful opportunity to obtain release and, in fact, was released on 

parole when he was 25 years old" and even though he was reincarcerated, "he 

continue[d] to be considered for release on parole." Id. at 960. In Rogers, 223 So. 3d 

at 281, the defendant was sentenced to life in prison with the possibility of parole for the 

offense of robbery. He was released on parole twice, both times ending back up in 

prison for new offenses. The Fourth District held that his sentence was not 

unconstitutional; he had "received more than what Graham requires" because "he had 

an opportunity for release and was in fact released from prison twice on parole." Id. at 

282.
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We adopt the reasoning in Rooks, Rogers, and Currie and hold that Stern 

is not entitled to resentencing for his nonhomicide offense because he has already been 

provided an opportunity for release. The postconviction court properly denied his rule 

3.800(a) motion.

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.