## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 16

- 1830

_____________________________
J ULIAN L AMONT F OSTER , Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court for Duval County

. Waddell A. Wallace , Judge

.
January 8, 2019

P ER C URIAM

. On June 30, 1995, following a jury trial, Appellant was sentenced for six offenses committed while he was a juvenile. He moved for post

- conviction relief as to two of his senten ces contending that those sentences were unconstitutional pursuant
to Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama

, 567 U.S. 460 (2012).

In an order filed April 5, 2016, the trial court granted Appellant post

- conviction relief in par t and ordered that Appellant be resentenced on count twenty

- one, armed robbery with a firearm, since Appellant’s life sentence without parole for a nonhomicide offense was unconstitutional pursuant to Graham. The trial court denied Appellant’s motion for post

- conviction2 relief to the extent that it challenged his life sentence for count 43, second

- degree murder. The trial court ruled, consistent with then binding case law, that since the life sentence was discretionary not mandatory, Miller did not apply. See Mazer v. State , 152 So. 3d 20 (Fla. 2d DCA 2014), and Mason v. State , 134 So. 3d 499 (Fla. 4th DCA 2014)

, disapproved of by Landrum v. State, 192 So. 3d 459 (Fla. 2016).

Appellant appealed the denial of his post

- conviction relief as to the second

- d egree murder sentence. The appeal was stayed by this court while the Florida Supreme Court considered Landrum. In Landrum , the Court noted that “ Miller requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before dete rmining that life without parole is a proportionate sentence.” Landrum, 192 So. 3d at 465 ( quo ting Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016) ). The Court in Landrum therefore reversed a discretionary sentence of life without possibility of parol e fo llowing a conviction for second

- degree murder.

As the State appropriately acknowledges, t he holding in Landrum applies to Appellant’s sentence for second

- degree murder, and he is entitled to be resentenced. * We therefore reverse and remand for resent encing pursuant to Landrum.

R EVERSED and R EMANDED

.

R OWE , B ILBREY , and W INSOR , JJ., concur

.

* During the pendency of the ins tant appeal, the trial court purported to grant on the authority of Landrum Appellant’s motion to correct sentencing error filed pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure. However, we have previously held that rule 3.800(b) “was de signed for use only in a direct appeal from the sentence at issue.” Cooper v. State, 919 So. 2d 516, 519 (Fla. 1st DCA 2005).3 ____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

____________________ _________

An dy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee

, for Appellant.

Ashley Brooke Moody , Attorney General, Tallahassee

, Kaitlin Weiss, Assistant Attorney General, for Appellee.