IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

December 28, 2016

ALFRED McDONALD, ) ) Appellant, ) ) v. ) Case No. 2D15-4950 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ )

BY ORDER OF THE COURT: The appellant’s motion for rehearing is granted. The opinion dated May 13, 2016, is hereby withdrawn and the attached opinion is subst ituted therefor. No further motions for rehearing will be entertained.

I HEREBY CERTIFY T HE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL CLERK- 2 - IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT ALFRED McDONALD, ) ) Appellant, ) ) v. ) Case No. 2D15-4950 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed December 28, 2016. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Vivian T. Corvo, Judge. Alfred McDonald, pro se.

PER CURIAM.

Alfred McDonald appeals the order denying his motions filed un der Florida Rules of Criminal Procedure 3.800(a) and 3.850(b)(2). We affir m the denial of ground two of McDonald's rule 3.800(a) motion, but we reverse the deni al of ground one and the denial of his rule 3.850(b)(2) motion, in which he asked th at ground one of his rule 3.800(a) motion be converted to a claim under rule 3.850(b)(2). McDonald argued that his senten ce of life with the possibilit y of parole for a first-degree murder he committed when he was sixteen years of age was-3- unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012 ). 1 He contended that he was entitled to a new sentencing hearing in conformance with chapter 2014-220, Laws of Florida. See Horsley v. State, 160 So. 3d 393 (Fla. 20 15) (holding that the remedy for a sentence that is unconstitutional under Miller is resentencing under chapter 2014-220). The postconviction court denied McDonald's motion based on the nexisting case law holding that Miller did not apply to life sen tences with the possibility of parole. See McPherson v. State, 138 So. 3d 1201, 1202 (Fla. 2d DCA 2014); Atwell v. State, 128 So. 3d 167, 169 (Fla. 4th DCA 2013). However, the s upreme court has now reversed Atwell, concluding "that Florida's existing parole sys tem, as set forth by statute, does not provide for individualized consideration of A twell's juvenile status at the time of the murder, as requi red by Miller, and that his sen tence, which is virtually indistinguishable from a sentence of life without parole, is th erefore unconstitutional." Atwell v. State, 197 So. 3d 1040, 1041 (Fla. 2016). The court held that juveniles sentenced to life with the possibility of parole are entitled t o resentencing in conformance with chapter 2014-220, Laws of Florida. Id. at 105 0 (citing Horsley, 160 So. 3d at 399); see Landy v. State, 2D15-4827, 2016 WL 6776120 (Fla. 2d DCA Nov. 16, 2016). The supreme court ha s now also quashed this court's decision in

McPherson. 2 See McPherson v. State, 41 Fla. L. Weekly S578 (Fla. Oct. 28, 2016)

1 McDonald was also sentenced to a consecutive term of fifteen ye ars' imprisonment for armed robbery.

2 From the allegations of McDonald's motion, it appears that McPh erson was his co-defendant in the murder and robbery.-4- (citing Atwell and remanding for resentencing in conformance wi th sections 775.082, 921.1401, and 921.1402 of the Florida Statutes). Accordingly, we reverse the postconviction court's denial of McDonald's rule 3.850(b)(2) motion and ground one of his rule 3.800(a) mot ion and remand for resentencing in conformance with chapter 2014-220, Laws of Flor ida, which was codified in sections 775.082, 921.1401, and 921.1402 of the Flo rida Statutes. Affirmed in part, reversed in part, and remanded for resentenc ing.

KHOUZAM, CRENSHAW, and LUCAS, JJ., Concur.