Rebecca Lee Falcon v. State of Florida

Supreme Court of Florida
____________

No. SC13-865
____________

REBECCA LEE FALCON,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

[March 19, 2015]

PARIENTE, J.

The issue in this case is whether the United States Supreme Court’s decision

in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)—which “forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

offenders”—applies to juvenile offenders whose convictions and sentences were

already final at the time Miller was decided. Considering this issue, and in reliance

on its prior decision in Gonzalez v. State, 101 So. 3d 886, 888 (Fla. 1st DCA

2012), the First District Court of Appeal concluded in Falcon v. State, 111 So. 3d

973, 973 (Fla. 1st DCA 2013), that Miller did not apply retroactively to juvenile
offenders seeking to challenge the constitutionality of their sentences, pursuant to

Miller, through collateral review.

All of Florida’s other district courts of appeal have addressed this same

issue, with conflicting results. The Third and Fifth District Courts of Appeal have

concluded, consistent with the First District, that Miller is not retroactive, while the

Second and Fourth District Courts of Appeal have held, to the contrary, that it is.

Compare Geter v. State, 115 So. 3d 375, 385 (Fla. 3d DCA 2012), and Anderson v.

State, 105 So. 3d 538, 538 (Fla. 5th DCA 2013) (table decision), with Toye v.

State, 133 So. 3d 540, 547 (Fla. 2d DCA 2014), and Cotto v. State, 141 So. 3d 615,

617 (Fla. 4th DCA 2014).

Noting the split of state and federal authority on the issue of whether Miller

should be given retroactive effect, the First District in Falcon certified the

following question of great public importance for this Court’s review:

WHETHER THE RULE ESTABLISHED IN MILLER V.
ALABAMA, 132 S. Ct. 2455, 2460 (2012), “THAT MANDATORY
LIFE WITHOUT PAROLE FOR THOSE UNDER THE AGE OF 18
AT THE TIME OF THEIR CRIMES VIOLATES THE EIGHTH
AMENDMENT[ ],” SHOULD BE GIVEN RETROACTIVE
EFFECT?

Falcon, 111 So. 3d at 973-74. We accepted jurisdiction to resolve this

important issue that has an impact on many cases pending in our state courts.

See art. V, § 3(b)(4), Fla. Const.

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 Applying this Court’s test for retroactivity, as articulated in Witt v. State,

387 So. 2d 922, 931 (Fla. 1980), we conclude that the rule set forth in Miller

constitutes a “development of fundamental significance” and therefore must be

given retroactive effect.1 We would reach the same conclusion if we were to apply

the test for retroactivity set forth in Teague v. Lane, 489 U.S. 288, 307 (1989).

Accordingly, we answer the certified question in the affirmative and hold

that the Supreme Court’s decision in Miller applies retroactively to juvenile

offenders whose convictions and sentences were final at the time Miller was

1. Although state and federal courts are split on the issue of the retroactive
application of Miller, our conclusion finds support in the recent trend of courts
across the country holding that Miller applies retroactively, even under the less
expansive test for retroactivity applied under federal law and by many states
pursuant to Teague v. Lane, 489 U.S. 288 (1989). See, e.g., In re Pendleton, 732
F.3d 280, 282 (3d Cir. 2013) (concluding after “extensive briefing” that the
defendants had “made a prima facie showing that Miller is retroactive”); Johnson
v. United States, 720 F.3d 720, 721 (8th Cir. 2013) (noting that the “government
here has conceded that Miller is retroactive”); People v. Davis, 6 N.E.3d 709, 722
(Ill. 2014) (holding that Miller applies retroactively); State v. Ragland, 836
N.W.2d 107, 117 (Iowa 2013) (retroactive); Diatchenko v. Dist. Att’y for Suffolk
Dist., 1 N.E.3d 270, 281 (Mass. 2013) (retroactive); Jones v. State, 122 So. 3d 698,
703 (Miss. 2013) (retroactive); State v. Mantich, 842 N.W.2d 716, 732 (Neb. 2014)
(retroactive); Petition of State of N.H., 103 A.3d 227, 236 (N.H. 2014)
(retroactive); Aiken v. Byars, 765 S.E.2d 572, 575 (S.C. 2014) (retroactive); Ex
parte Maxwell, 424 S.W.3d 66, 68 (Tex. Crim. App. 2014) (retroactive); State v.
Mares, 335 P.3d 487, 508 (Wyo. 2014) (retroactive). But see Johnson v. Ponton,
No. 13-7824, 2015 WL 924049, at *5 (4th Cir. Mar. 5, 2015) (holding that Miller
does not apply retroactively); In re Morgan, 713 F.3d 1365, 1367-68 (11th Cir.
2013) (not retroactive); State v. Tate, 130 So. 3d 829, 844 (La. 2013) (not
retroactive); Chambers v. State, 831 N.W.2d 311, 331 (Minn. 2013) (not
retroactive); Commonwealth v. Cunningham, 81 A.3d 1, 10-11 (Pa. 2013) (not
retroactive).

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decided. Under Florida Rule of Criminal Procedure 3.850(b)(2), any affected

juvenile offender shall have two years from the time the mandate issues in this case

to file a motion for postconviction relief in the trial court seeking to correct his or

her sentence pursuant to Miller.

Based on our decision in Horsley v. State, No. SC13-1938, slip op. at 3 (Fla.

Mar. 19, 2015), we conclude that the appropriate remedy for any juvenile offender

whose sentence is now unconstitutional under Miller is a resentencing pursuant to

the framework established in legislation enacted by the Florida Legislature in

2014. See ch. 2014-220, Laws of Fla. We therefore quash the First District’s

decision and remand this case for resentencing in conformance with chapter 2014-

220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and

921.1402 of the Florida Statutes.

FACTS AND BACKGROUND

Rebecca Lee Falcon was fifteen years old in late 1997 when she took part in

an attempted robbery that resulted in the death of a cab driver. According to an

affidavit from a clinical psychologist specializing in adolescent development, who

conducted several evaluations and interviews with Falcon in the years after the

crime, Falcon’s childhood leading up to that point had been traumatic, including

having suffered sexual and emotional abuse from her stepfather and continued

sexual exploitation from peers at school. By the time of the crime, Falcon asserted

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that she was experiencing “low self-esteem,” had started smoking marijuana, and

was “desperate for attention” such that she would “do things just for approval.”

On the night of the crime, Falcon reported that her boyfriend, with whom

she professed to have fallen in love because he was “the first person who seemed

to care for” her, ended their relationship since he was seeing someone else.

Hoping to “sleep off her sadness,” she consumed alcohol and became intoxicated.

Falcon stated that, while drunk, she received an invitation to sneak out of the house

and made an “impulsive” decision to go because she “was still not popular” and

wanted “to be accepted.”

Asserting that she was trying “to fit in” and act “brave” to mask her “true

feelings of insecurity,” Falcon “agreed to the idea of a robbery,” expecting to “get

the money and go” as she claimed she had seen in “the movies.” However, when

the robbery did not proceed as expected, she alleged that she “panicked” and,

though not “want[ing] to kill someone,” ultimately participated in causing the

shooting death of the attempted robbery victim.

Falcon was convicted of first-degree murder and attempted armed robbery

with a firearm and sentenced to life imprisonment without the possibility of parole

for the murder and 207.5 months in prison for the attempted armed robbery. Under

the version of the relevant Florida statute then in effect, section 775.082(1), Florida

Statutes (1997), Falcon’s sentence of life in prison without the possibility of parole

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for the first-degree murder was mandatory.2 Her convictions and sentences were

affirmed on direct appeal by the First District in 2001. See Falcon v. State, 781 So.

2d 1086, 1086 (Fla. 1st DCA 2001) (table decision).

More than a decade after her convictions and sentences became final, the

United States Supreme Court issued its decision in Miller, 132 S. Ct. at 2469,

holding that the Eighth Amendment’s prohibition on cruel and unusual punishment

“forbids a sentencing scheme that mandates life in prison without possibility of

parole for juvenile offenders.” There is no dispute following Miller that the statute

under which Falcon was sentenced for first-degree murder, which mandated life in

prison without the possibility of parole, is unconstitutional as applied to juvenile

offenders.

Subsequently, in August 2012, Falcon filed a motion for postconviction

relief and to correct an illegal sentence, asserting that her mandatory sentence of

2. The statute under which Falcon was sentenced provided in pertinent part
as follows:

A person who has been convicted of a capital felony shall be
punished by death if the proceeding held to determine sentence
according to the procedure set forth in s. 921.141 results in findings
by the court that such person shall be punished by death, otherwise
such person shall be punished by life imprisonment and shall be
ineligible for parole.

§ 775.082(1), Fla. Stat. (emphasis added). Because she was a juvenile under the
age of eighteen at the time of the murder, Falcon is ineligible for the death penalty.
See Roper v. Simmons, 543 U.S. 551, 568 (2005).

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life imprisonment without the possibility of parole is unconstitutional under Miller

and that she is therefore entitled to be resentenced. In her motion, Falcon argued

that Miller should be applied retroactively and that the trial court must vacate her

life sentence and, pursuant to Miller, conduct an individualized resentencing

hearing in order to take into account her age and age-related characteristics in

imposing an appropriate sentence.

The trial court denied Falcon’s motion on the basis that the First District had

already held, in Gonzalez, 101 So. 3d at 888, that Miller did not apply

retroactively. Specifically, in Gonzalez, the First District concluded, consistent

with a prior decision from the Third District, that Miller was a procedural, rather

than substantive, change in the law and that retroactive application of Miller

“would greatly affect the administration of justice” by opening the floodgates for

postconviction motions. Id. at 887 (citing Geter, 115 So. 3d at 383).

Falcon appealed the trial court’s denial of her motion for postconviction

relief to the First District, which affirmed the denial of relief based on its previous

decision in Gonzalez. Falcon, 111 So. 3d at 974. However, the First District

certified a question of great public importance to this Court as to whether Miller

should be applied retroactively. Id.

Chief Judge Benton concurred in the First District’s decision on the basis of

the First District’s Gonzalez precedent, but wrote separately to explain that, in his

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view, the Supreme Court’s decision in Miller should be applied retroactively. In

support of this conclusion, Chief Judge Benton relied on the fact that the Supreme

Court had granted relief to two separate defendants in its Miller decision, Evan

Miller of Alabama and Kuntrell Jackson of Arkansas, whose cases were

consolidated and argued in tandem. Id. at 974 (Benton, C.J., concurring).

Miller, the defendant in the Alabama case, initially appealed his conviction

and sentence directly to the Alabama Court of Criminal Appeals, and then obtained

further, direct review in the United States Supreme Court. However, “Jackson, the

defendant in the Arkansas case—like the appellant in our case—had reached the

end of the line on direct appeal, without obtaining any relief.” Id. (footnote

omitted). Only after Jackson did not prevail in challenging his sentence on direct

appeal and he sought collateral relief, which the state courts denied, did the United

States Supreme Court grant review in Jackson’s case and ultimately provide him

relief. Based upon the Supreme Court’s treatment of Jackson, Chief Judge Benton

concluded that Miller should be applied retroactively. Id. at 975-76.

ANALYSIS

The question certified by the First District in this case asks whether the

United States Supreme Court’s decision in Miller, 132 S. Ct. at 2469, which held

that the Eighth Amendment’s prohibition on cruel and unusual punishment

“forbids a sentencing scheme that mandates life in prison without possibility of

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parole for juvenile offenders,” should be applied retroactively. In answering the

certified question, we undertake the following analysis. First, we summarize the

Supreme Court’s decision in Miller and explain its relation to the Supreme Court’s

prior decision in Graham v. Florida, 560 U.S. 48 (2010). Then, with this

background established, we analyze whether Miller should be given retroactive

effect under this Court’s retroactivity standard, as articulated in Witt, 387 So. 2d

922. Finally, after concluding that the Supreme Court’s decision in Miller should

be given retroactive effect, we explain the appropriate remedy for trial courts to

employ when applying Miller retroactively to cases on collateral review.

I. The Supreme Court’s Decision in Miller & Its Relation to Graham

A discussion of Miller appropriately begins with the Supreme Court’s prior

decision in Graham, which laid the jurisprudential foundation upon which the

subsequent Miller decision was based. In Graham, 560 U.S. at 82, the Supreme

Court held that a sentence of life without the possibility of parole violates the

Eighth Amendment’s prohibition on cruel and unusual punishment when imposed

on a juvenile offender convicted of a nonhomicide offense. In deciding Graham,

the Supreme Court explained that juveniles are fundamentally different than adults

for sentencing purposes, noting that juveniles are more vulnerable to negative

outside forces than adults, are incapable of engaging in conduct that is as morally

reprehensible as adults, and possess a greater potential for change than adults. Id.

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at 67-68. Based upon these differences, the Supreme Court established a

categorical rule that bars the imposition of a sentence of life imprisonment without

the possibility of parole in all circumstances for every juvenile offender convicted

of a nonhomicide offense. Id. at 82.

Subsequently, in Miller, the Supreme Court reviewed two cases in which

defendants were sentenced to mandatory terms of life imprisonment without the

possibility of parole for homicide offenses committed while they were juveniles.

The Supreme Court reversed the sentences imposed and held that “mandatory life

without parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id.

Although the Supreme Court did not categorically foreclose a sentencer’s ability to

impose a sentence of life imprisonment without the possibility of parole on a

homicide offender, as it did with respect to nonhomicide offenders in Graham,

Miller held that before a sentencer may impose a sentence of life imprisonment

without the possibility of parole on a juvenile homicide offender, the sentencer

must first “take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.

Although the Supreme Court made clear that it was not addressing the

defendants’ argument “that the Eighth Amendment requires a categorical bar on

life without parole for juveniles, or at least for those 14 and younger,” the Supreme

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Court cautioned that “given all [it has] said in Roper [v. Simmons, 543 U.S. 551

(2005)], Graham, and [Miller] about children’s diminished culpability and

heightened capacity for change, . . . appropriate occasions for sentencing juveniles

to this harshest possible penalty will be uncommon.” Id. The Supreme Court

emphasized that this is “especially so because of the great difficulty [the Supreme

Court] noted in Roper and Graham of distinguishing at this early age between ‘the

juvenile offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.’ ” Id.

(quoting Roper, 543 U.S. at 573).

Because the statutory sentencing scheme in effect in Florida from May 1994

until July 2014 mandated a sentence of life imprisonment without the possibility of

parole for a capital homicide offense committed by a juvenile, there is no dispute

that, under Miller, the statute is unconstitutional as applied to juvenile offenders.

The district courts of appeal are split, however, on the issue of whether Miller

should apply retroactively to provide relief to those juvenile offenders whose

sentences would be unconstitutional under Miller but whose convictions and

sentences were already final when Miller was decided. Compare Geter, 115 So. 3d

at 385, with Toye, 133 So. 3d at 541.

II. Retroactivity of Miller

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 When the United States Supreme Court or this Court renders a decision

favorable to criminal defendants, this Court has held that “such decisions apply in

all cases to convictions that are not yet final—that is convictions for which an

appellate court mandate has not yet issued.” Hughes v. State, 901 So. 2d 837, 839

(Fla. 2005) (citing Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992)). However,

once a conviction is final, the State acquires an interest in the finality of the

conviction. As this Court has previously stated:

The importance of finality in any justice system, including the
criminal justice system, cannot be understated. It has long been
recognized that, for several reasons, litigation must, at some point,
come to an end. In terms of the availability of judicial resources,
cases must eventually become final simply to allow effective appellate
review of other cases. There is no evidence that subsequent collateral
review is generally better than contemporaneous appellate review for
ensuring that a conviction or sentence is just. Moreover, an absence
of finality casts a cloud of tentativeness over the criminal justice
system, benefitting neither the person convicted nor society as a
whole.

Witt, 387 So. 2d at 925. Nonetheless, this Court has also recognized that the

doctrine of finality can be abridged when

a more compelling objective appears, such as ensuring fairness and
uniformity in individual adjudications. Thus, society recognizes that a
sweeping change of law can so drastically alter the substantive or
procedural underpinnings of a final conviction and sentence that the
machinery of post-conviction relief is necessary to avoid individual
instances of obvious injustice. Considerations of fairness and
uniformity make it very difficult to justify depriving a person of his
liberty or his life, under process no longer considered acceptable and
no longer applied to indistinguishable cases.

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Id. (internal quotation marks omitted).

In determining whether a change in the law should apply retroactively, this

Court must balance these two competing interests—the need for decisional finality

with the concern for fairness and uniformity. This determination is governed by

this Court’s decision in Witt, 387 So. 2d at 931, which held that a change in the

law does not apply retroactively in Florida “unless the change: (a) emanates from

this Court or the United States Supreme Court, (b) is constitutional in nature, and

(c) constitutes a development of fundamental significance.”

In this case, it is clear, and the parties agree, that the first two prongs are

met. Miller is obviously a decision emanating from the United States Supreme

Court, and its holding that the Eighth Amendment “forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile offenders” is

clearly constitutional in nature. Miller, 132 S. Ct. at 2469. Accordingly, the

determinative question in this case is whether Miller “constitutes a development of

fundamental significance.” Witt, 387 So. 2d at 931.

In Witt, this Court stated that “[a]lthough specific determinations regarding

the significance of various legal developments must be made on a case-by-case

basis, history shows that most major constitutional changes are likely to fall within

two broad categories.” Id. at 929. The first are those changes of law “which place

beyond the authority of the state the power to regulate certain conduct or impose

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certain penalties” and the second are “those changes of law which are of sufficient

magnitude to necessitate retroactive application as ascertained by the three-fold

test of [the United States Supreme Court’s decisions in] Stovall [v. Denno, 388

U.S. 293 (1967)] and Linkletter [v. Walker, 381 U.S. 618 (1965)].” Id. The three-

fold analysis under Stovall and Linkletter includes an analysis of “(a) the purpose

to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the

effect on the administration of justice of a retroactive application of the new rule.”

Witt, 387 So. 2d at 926.

Falcon asserts that the Supreme Court’s decision in Miller falls within the

first category. Specifically, Falcon contends that the Supreme Court’s decision

announces a new substantive bar to mandatory life sentences without the

possibility of parole for all juveniles and proclaims that the Eighth Amendment

forbids such mandatory sentencing schemes. Conversely, the State argues that

Miller does not preclude states from imposing life sentences without the possibility

of parole, but instead simply alters the procedures that must be followed before

such a sentence may be imposed.

We reject the State’s argument. As articulated by the Second District in

Toye, Miller “effectively invalidated section 775.082(1), Florida Statutes (2012),

as applied to juveniles convicted of a capital felony . . . . Hence, Miller invalidated

the only statutory means for imposing a sentence of life without the possibility of

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parole on juveniles convicted of a capital felony.” Toye, 133 So. 3d at 543. In

other words, “Miller has dramatically disturbed the power of the State of Florida to

impose a nondiscretionary sentence of life without parole on a juvenile convicted

of a capital felony, and thus the decision falls within this first category of

developments of fundamental significance” that place beyond the authority of the

state the power to regulate certain conduct or impose certain penalties. Id.

Judge Van Nortwick, specially concurring in Smith v. State, reached a

similar conclusion:

Under Miller, a defendant cannot be given a mandatory sentence of
life without parole if the defendant was a juvenile when the offense
was committed. That is, Miller categorically bans mandatory life
sentences for juveniles. Thus, Miller “[p]laces beyond the authority
of the state [of Florida] the power to . . . impose [a] certain
penalt[y]”—mandatory life sentences for juveniles.

113 So. 3d 1058, 1062 (Fla. 1st DCA 2013) (Van Nortwick, J., specially

concurring).

Clearly, by invalidating section 775.082(1), Florida Statutes, as applied to

juveniles convicted of a capital homicide offense, Miller announced a prohibition

on the state’s power to “impose certain penalties”—nondiscretionary sentences of

life imprisonment without the possibility of parole. Indeed, prior to the Supreme

Court’s decision in Miller, trial courts in Florida were required, under the statutory

sentencing scheme then in effect, to sentence a juvenile offender convicted of a

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capital homicide offense to life imprisonment without the possibility of parole.

This statute, all parties agree, is no longer constitutional after Miller.

The fact that Miller did not categorically foreclose a trial court’s ability to

impose a sentence of life imprisonment without the possibility of parole in

“uncommon” circumstances, after individualized consideration, is not dispositive

in determining whether Miller fits within the first category of major constitutional

changes that “place beyond the authority of the state the power to regulate certain

conduct or impose certain penalties.” Witt, 387 So. 2d at 929. The state is no

longer able to impose a mandatory sentence of life imprisonment without the

possibility of parole on a juvenile—the only statutory penalty that was provided for

a capital homicide offense for over twenty years under Florida law until Miller

ruled that sentence unconstitutional. Under these circumstances, this alone is

sufficient reason to conclude that Miller should be applied retroactively.

As this Court stated in Witt, “[c]onsiderations of fairness and uniformity

make it very ‘difficult to justify depriving a person of his liberty or his life, under

process no longer considered acceptable and no longer applied to indistinguishable

cases.’ ” Id. at 925 (quoting ABA Standards Relating to Postconviction Remedies

37 (Approved Draft 1968)). Here, if Miller is not applied retroactively, it is

beyond dispute that some juvenile offenders will spend their entire lives in prison

while others with “indistinguishable cases” will serve lesser sentences merely

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because their convictions and sentences were not final when the Miller decision

was issued. The patent unfairness of depriving indistinguishable juvenile offenders

of their liberty for the rest of their lives, based solely on when their cases were

decided, weighs heavily in favor of applying the Supreme Court’s decision in

Miller retroactively.

For all these reasons, we conclude that the Supreme Court’s decision in

Miller constitutes a “development of fundamental significance” under Witt and

therefore applies retroactively. We would reach the same conclusion that Miller is

retroactive if we were to apply the federal test established in Teague, 489 U.S. at

307. Pursuant to Florida Rule of Criminal Procedure 3.850(b)(2), any affected

juvenile offender shall have two years from the time the mandate issues in this case

to file a motion for postconviction relief in the trial court seeking to correct his or

her sentence based on Miller.

Because we have concluded that Miller constitutes a change of law “which

place[s] beyond the authority of the state the power to regulate certain conduct or

impose certain penalties,” Witt, 387 So. 2d at 929, we need not determine whether

the rule articulated in Miller satisfies the three-fold analysis under Stovall and

Linkletter. We do observe, however, that our holding of retroactivity is consistent

with the Supreme Court’s own treatment of Arkansas defendant Kuntrell Jackson

in the Miller decision itself. As Chief Judge Benton observed in his concurrence

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below, Jackson’s direct appeal of his conviction and sentence was already final

when he sought collateral relief through a postconviction habeas petition that the

Supreme Court ultimately consolidated with the Miller case. See Falcon, 111 So.

3d at 974-75 (Benton, C.J., concurring). In reversing the Arkansas state court’s

denial of relief and remanding Jackson’s case for resentencing, the Supreme Court

strongly suggested that the rule articulated in Miller should apply retroactively to

cases on collateral review.

Having concluded that juvenile offenders whose convictions and sentences

were final prior to the Supreme Court’s decision in Miller may seek collateral

relief based on that decision, we now turn to the appropriate remedy for trial courts

to employ when addressing these cases on collateral review.

III. The Appropriate Remedy

In Horsley v. State, No. SC13-1938, slip op. at 3 (Fla. Mar. 19, 2015), we

have concluded that legislation enacted by the Florida Legislature in 2014 to bring

Florida’s juvenile sentencing statutes into compliance with Miller and Graham

provides the appropriate remedy for all juvenile offenders whose sentences are

unconstitutional under Miller, even if the juvenile’s offense was committed prior to

the July 1, 2014, effective date of the legislation. In this case, the State has

conceded that, if Miller applies retroactively, there are “no principled distinctions”

as to the appropriate remedy for cases on collateral review and those pending on

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direct appeal, as in the posture of Horsley. Thus, based on the reasoning fully set

forth in Horsley, we conclude that trial courts should apply chapter 2014-220,

Laws of Florida, and conduct a resentencing proceeding in conformance with that

legislation, when presented with a timely rule 3.850 motion for postconviction

relief from any juvenile offender whose sentence is unconstitutional under Miller.

Here, the trial court should hold an individualized sentencing hearing for

Falcon pursuant to section two of chapter 2014-220, Laws of Florida, in which the

trial court shall consider the enumerated and any other pertinent factors “relevant

to the offense and [Falcon’s] youth and attendant circumstances.” Ch. 2014-220,

§ 2, Laws of Fla.3 Under section 1 of chapter 2014-220, Laws of Florida, the trial

court must determine whether Falcon “actually killed, intended to kill, or attempted

to kill the victim.” Ch. 2014-220, § 1, Laws of Fla.4 If the trial court determines

3. Although the particular facts of Falcon’s crime are not directly relevant to
the legal issues we address at this time, record evidence suggests that she is exactly
the type of juvenile offender the United States Supreme Court was referring to in
Miller and its other recent juvenile sentencing cases regarding the “characteristics
of youth, and the way they weaken rationales for punishment”—a juvenile with a
troubled upbringing, whose offense was influenced by “familial and peer
pressures,” and who has shown great capacity for remorse and rehabilitation.
Miller, 132 S. Ct. at 2465-66, 2468.
4. The record currently before us does not conclusively establish this fact.
Although there appears to be some indication that Falcon has admitted to firing the
gun, the jury did not find Falcon to have had actual possession of a firearm during
the attempted armed robbery. We leave this determination for the trial court on
remand.

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that Falcon “actually killed, intended to kill, or attempted to kill the victim,” then

Falcon must receive a sentence of at least forty years’ imprisonment, with

subsequent judicial review of her sentence after having served twenty-five years of

that sentence. If the trial court concludes that Falcon did not “actually kill, intend

to kill, or attempt to kill the victim,” the trial court has broader discretion to impose

a sentence of any lesser term of years, with judicial review after fifteen years if

Falcon is sentenced to more than fifteen years’ imprisonment.5

CONCLUSION

For all these reasons, we hold that the United States Supreme Court’s

decision in Miller applies retroactively to any juvenile offender seeking to

challenge the constitutionality of his or her sentence pursuant to Miller through

collateral review. Under Florida Rule of Criminal Procedure 3.850(b)(2), any

affected juvenile offender shall have two years from the time the mandate issues in

this case to file a motion for postconviction relief in the trial court seeking to

correct his or her sentence pursuant to Miller.

We further conclude that a trial court presented with a timely motion under

rule 3.850 from any juvenile offender whose sentence is unconstitutional under

5. Because Falcon has already served more than fifteen years of a sentence
for her first-degree murder conviction, it is possible, depending on the sentence she
ultimately receives on remand, that she will be immediately eligible for a sentence
review after being resentenced. However, we leave it to the trial court to resolve
any specific issues relating to application of the new legislation in this case.

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Miller shall apply the juvenile sentencing legislation enacted by the Florida

Legislature in 2014 and conduct a resentencing proceeding consistent with the

provisions of chapter 2014-220, Laws of Florida, and our decision in Horsley.

Accordingly, we answer the First District’s certified question regarding

retroactivity in the affirmative, quash the underlying decision, and remand this case

for resentencing in conformance with chapter 2014-220, Laws of Florida.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

First District - Case No. 1D13-34

(Bay County)

Elliot H. Scherker of Greenberg Traurig, P.A., Miami, Florida; Paolo Giuseppe
Annino, Co-Director, Public Interest Law Center, Florida State College of Law,
Tallahassee, Florida; and Karen Marcia Gottlieb, Coconut Grove, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief,
Tallahassee, Florida,

for Respondent

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Marsha L. Levick, Juvenile Law Center, Philadelphia, Pennsylvania, and George
E. Schulz, Jr. of Holland & Knight, Jacksonville, Florida,

for Amici Curiae Juvenile Law Center, et al.

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