FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-1830

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JULIAN LAMONT FOSTER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Waddell A. Wallace, Judge.

January 8, 2019

PER CURIAM.

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 sentences 

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 part 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-conviction 
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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-degree 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 determining that life without parole is a proportionate 

sentence.” Landrum, 192 So. 3d at 465 (quoting Montgomery v. 

Louisiana, 136 S. Ct. 718, 735 (2016)). The Court in Landrum 

therefore reversed a discretionary sentence of life without 

possibility of parole following a conviction for second-degree 

murder.

As the State appropriately acknowledges, the 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 resentencing pursuant to Landrum. 

REVERSED and REMANDED.

ROWE, BILBREY, and WINSOR, JJ., concur.

 * During the pendency of the instant 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 designed for use only 

in a direct appeal from the sentence at issue.” Cooper v. State, 

919 So. 2d 516, 519 (Fla. 1st DCA 2005). 
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy 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.