Supreme Court of Florida
_____________
No. SC15-2079
____________
THOMAS KELSEY,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[December 8, 2016]
PERRY, J.
This case is before the Court for review of the decision of the First District
Court of Appeal in Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015). In its
decision, the district court expressed concern and certified a question of great
public importance,1 which we rephrase as follows:
1. The following question was certified by the First District:
Whether a defendant whose initial sentence for a
nonhomicide crime violates Graham v. Florida, and who
is resentenced to concurrent forty-five year terms, is
entitled to a new resentencing under the framework
established in chapter 2014-220, Laws of Florida?
Kelsey, 183 So. 3d at 442.
Is a defendant whose original sentence violated Graham v. Florida,
560 U.S. 48 (2010), and who was subsequently resentenced prior to
July 1, 2014, entitled to be resentenced pursuant to the provisions of
chapter 2014-220, Laws of Florida?
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the rephrased
question in the affirmative.
FACTS AND PROCEDURAL HISTORY
Thomas Kelsey was born on December 10, 1986. The underlying offenses
in this case occurred on November 6, 2002, when fifteen-year-old Kelsey
burglarized an apartment and raped the pregnant victim at knifepoint in the
presence of her two small children. Kelsey was identified in 2008 based on a DNA
match. In 2009, Kelsey was charged with two counts of armed sexual battery,
armed burglary, and armed robbery, and he pleaded guilty. On March 26, 2010, a
trial court sentenced Kelsey to two life sentences and two concurrent twenty-five-
year terms for four nonhomicide offenses. After the United States Supreme Court
decided Graham v. Florida, 560 U.S. 48 (2010), Kelsey sought to withdraw his
plea, which was denied. At the resentencing held in January 2014, the trial court
imposed concurrent sentences of forty-five years.2
2. The sentences also run concurrently to a twenty-year sentence that Kelsey
is serving pursuant to a revocation of probation on an unrelated offense.
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On appeal, the First District Court of Appeal originally issued an opinion in
Kelsey v. State, 183 So. 3d 439, 440 (Fla. 1st DCA 2015), comprised of one
paragraph, holding:
Even if Mr. Kelsey were entitled to resentencing under Henry [v.
State, 175 So. 3d 675 (Fla. 2015)], which applied the new sentence
review statute to a Graham-eligible defendant, he is not entitled to the
benefit of the new sentence review statute because his previous
convictions for another separate armed robbery and conspiracy to
commit armed robbery disentitle him to relief. See § 921.1402(2)(a),
Fla. Stat. (2014) (“[A] juvenile offender is not entitled to review if he
or she has previously been convicted of one of the following offenses,
or conspiracy to commit one of the following offenses . . . armed
robbery.”).
On Kelsey’s motion for rehearing, the First District issued a revised opinion,
reconsidering its legal analysis, and “concluding that [Kelsey] is not entitled to
resentencing again.” Id. Under its revised analysis, the First District opined that it
was precluded from providing Kelsey the same relief afforded to Henry because
Kelsey’s forty-five-year prison term did not constitute a de facto life sentence in
violation of Graham. Id. at 441 (citing Abrakata v. State, 168 So. 3d 251, 252 (Fla.
1st DCA 2015); Lambert v. State, 170 So. 3d 74, 76 (Fla. 1st DCA 2015)).
Specifically, the First District stated, “Because the concurrent resentences at issue
in this case do not violate Graham, we are constrained to deny relief.” Id.
After recognizing our guidance in Thomas v. State, 135 So. 3d 590 (Fla. 1st
DCA 2014), quashed, 177 So. 3d 1275 (Fla. 2015) (table decision), the First
District distinguished Kelsey, opining that the decision in Thomas was based on
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Miller v. Alabama, 132 S. Ct. 2455 (2012),3 and its progeny, and not Graham. The
First District recognized that, “the supreme court appears to require that any
juvenile initially sentenced . . . in violation of Miller be sentenced under the new
framework regardless of what resentence may have been imposed in the interim.”
Kelsey, 183 So. 3d at 441. However, the district court reasoned:
Unlike Miller cases for which no valid remedy on resentencing was
available until the recent legislation, a wide range of valid term of
years sentences are available for [juveniles] whose original sentences
were unconstitutional under Graham. If those resentences themselves
violate Graham by providing no meaningful opportunity for release
(as in Henry and Gridine [v. State, 175 So. 3d 672 (Fla. 2015)]), the
supreme court requires resort[ing] to the 2014 legislative remedies.
But the supreme court has not yet held that all resentencings and re-
resentencings under Graham must also comply with the recent
legislation. Our precedents have not held that a forty-five year
sentence for a nonhomicide is a de facto life term to which Graham
applies; nor has our supreme court. We are thereby constrained to
affirm in this case, but recognizing the need for clarity on this
category of Graham cases certify the following question . . . .
Id. at 442.
DISCUSSION
Standard of Review
Because the certified question of great public importance before this Court
presents a purely legal question, the appropriate standard of review is de novo. See
3. In Miller, the Supreme Court held that mandatory life sentences without
parole for crimes committed by juveniles violate the Eighth Amendment.
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Gridine, 175 So. 3d at 674 (citing Haygood v. State, 109 So. 3d 735, 739 (Fla.
2013)).
Graham
The United States Supreme Court’s decision in Graham held that Florida’s
practice of sentencing juvenile offenders to life in prison for nonhomicide crimes
violated the Eighth Amendment to the United States Constitution. For a period of
nearly four years, the Florida Legislature left the trial courts and district courts of
appeal to determine how to legally sentence juvenile nonhomicide offenders. In
2014, the Legislature passed chapter 2014-220, Laws of Florida, which provided
judicial review for juvenile offenders who were tried as adults and received more
than twenty years of incarceration, with exceptions. Following that, this Court, in
a unanimous decision, decided that juveniles who receive sentences that do not
provide a meaningful opportunity for release are entitled to be resentenced
pursuant to chapter 2014-220, Laws of Florida. As we discuss further below, we
conclude that our decision in Henry v. State, 175 So. 3d 675 (Fla. 2015), requires
that all juvenile offenders whose sentences meet the standard defined by the
Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled
to judicial review. We therefore hold that all juveniles who have sentences that
violate Graham are entitled to resentencing pursuant to chapter 2014-220, Laws of
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Florida, codified in sections 775.082, 921.1401 and 921.1402, Florida Statutes
(2014).
To answer the First District’s certified question, we first revisit the Supreme
Court’s decision in Graham. Terrance Jamar Graham received a withheld
adjudication and was sentenced to probation for crimes he committed at the age of
sixteen. He subsequently received a life sentence after violating that probation
before he turned eighteen years of age. Graham, 560 U.S. at 53-57.
The Supreme Court began its analysis with its Eighth Amendment
jurisprudence. Id. at 58. The Court noted that the core of the Eighth Amendment
“is the ‘precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.’ ” Id. at 59 (quoting Weems v. United States, 217
U.S. 349, 367 (1910)). The Court then noted that Graham presented a new
categorical challenge to term-of-years sentences. Id. at 61 (“The present case
involves an issue the Court has not considered previously: a categorical challenge
to a term-of-years sentence.”). Accordingly, the Court reasoned, the correct
approach to the analysis would be the one used in cases such as Kennedy v.
Louisiana, 554 U.S. 407 (2008), Roper v. Simmons, 543 U.S. 551 (2005), and
Atkins v. Virginia, 536 U.S. 304 (2002). Graham, 560 U.S. at 61-62.
Opining that “Roper established that because juveniles have lessened
culpability they are less deserving of the most severe punishments,” Graham, 560
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U.S. at 68 (citing Roper, 543 U.S. at 569), the Court pronounced a categorical rule.
Id. at 75, 78, 79 (“Categorical rules tend to be imperfect, but one is necessary
here.” “A categorical rule avoids the risk that . . . a court or jury will erroneously
conclude that a particular juvenile is sufficiently culpable to deserve life without
parole for a nonhomicide.” “[A] categorical rule gives all juvenile nonhomicide
offenders a chance to demonstrate maturity and reform.”). The new categorical
rule provided that:
The Constitution prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit homicide. A
State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some
realistic opportunity to obtain release before the end of that term.
Id. at 82.
In this Court’s discussions of Graham, we have underscored the Supreme
Court’s emphasis on the status of the juvenile nonhomicide offender and the nature
of the offense committed. See Henry, 175 So. 3d at 675 (citing Graham, 560 U.S.
at 69). Accordingly, our focus has not been on the length of the sentence imposed
but on the status of the offender and the possibility that he or she will be able to
grow into a contributing member of society. To understand this reading of
Graham, we now turn to our decision in Henry.
Henry
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Leighdon Henry, a juvenile offender who was tried as an adult, was
convicted of multiple nonhomicide crimes and sentenced to life in prison plus an
additional sixty years. Henry, 175 So. 3d at 676. After Graham issued, Henry’s
life sentence was vacated and he was resentenced to thirty years in prison, to run
consecutively to the originally imposed sixty-year sentence. Id.
On appeal, we concluded “that Graham prohibits the state trial courts from
sentencing juvenile nonhomicide offenders to prison terms that ensure these
offenders will be imprisoned without obtaining a meaningful opportunity to obtain
future early release during their natural lives based on their demonstrated maturity
and rehabilitation.” Id. at 680. We reasoned that the “Supreme Court’s long-held
and consistent view that juveniles are different” supported the conclusion that “the
specific sentence that a juvenile nonhomicide offender receives for committing a
given offense is not dispositive as to whether the prohibition against cruel and
unusual punishment is implicated.” Id. Thus, we determined that Graham was not
limited to certain sentences but rather was intended to insure that “juvenile
nonhomicide offenders will not be sentenced to terms of imprisonment without
affording them a meaningful opportunity for early release based on a
demonstration of maturity and rehabilitation.” Id. In light of this reasoning, we
concluded that the Eighth Amendment, as read through Graham, requires a review
mechanism for evaluating this class of offenders because “any term of
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imprisonment for a juvenile is qualitatively different than a comparable period of
incarceration is for an adult.” Id. Therefore, our holding in Henry was not
predicated on the term of the sentence but rather on the status of, and the
opportunity afforded, the offender. Indeed, the holding of Henry was unequivocal.
Additionally, we determined that the remedy outlined in Horsley v. State, 160 So.
3d 393, 395 (Fla. 2015), applied to cases like Henry’s. See Henry, 175 So. 3d at
680.
Horsley
In Horsley, a juvenile offender tried as an adult was convicted of first-degree
felony murder, among other offenses, and received a mandatory life sentence
without the possibility of parole. After Miller, the trial court resentenced Horsley
to life imprisonment without the possibility of parole. The Fifth District Court of
Appeal vacated that sentence and certified a question of great public importance to
this Court.4 In our decision, we reasoned that “presented with this unique situation
in which a federal constitutional infirmity in a sentencing statute has now been
4. The Fifth District asked: “Whether the Supreme Court’s decision in
Miller v. Alabama, [132 S. Ct. 2455 (2012)], which invalidated section
775.082(1)’s mandatory imposition of life without parole sentences for juveniles
convicted of first-degree murder, operates to revive the prior sentence of life with
parole eligibility after 25 years previously contained in that statute?” Horsley, 160
So. 3d at 397 (quoting Horsley v. State, 121 So. 3d 1130, 1132-33 (Fla. 5th DCA
2013)).
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specifically remedied by our Legislature, we conclude that the proper remedy is to
apply [that legislation] to all juvenile offenders whose sentences are
unconstitutional in light of Miller.” Horsley, 160 So. 3d at 395.
Miller held that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders,” even
for juveniles convicted of homicide crimes. Miller, 132 S. Ct. at 2469. While the
remedy articulated in Horsley initially only applied to those juvenile defendants
whose sentences violated the Eighth Amendment pursuant to Miller, we extended
the reasoning of Horsley to those juveniles whose sentences violated the Eighth
Amendment pursuant to Graham in Henry. See Henry, 175 So. 3d at 680. We
have since reaffirmed that application of the new statute is the appropriate remedy.
See Thomas v. State, 177 So. 3d 1275 (Fla. 2015).
Reading together our decisions in Henry, Horsley, and Thomas, it is clear
that we intended for juvenile offenders, who are otherwise treated like adults for
purposes of sentencing, to retain their status as juveniles in some sense. In other
words, we have determined through our reading of the Legislature’s intent in
passing chapter 2014-220, Laws of Florida, that juveniles who are serving lengthy
sentences are entitled to periodic judicial review to determine whether they can
demonstrate maturation and rehabilitation. It would be antithetical to the precept
of Graham and chapter 2014-220, Laws of Florida, to interpret them so narrowly as
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to exclude a juvenile offender who happens to have been resentenced before this
Court issued Henry. With these considerations in mind, we turn to the present
case.
This Case
Kelsey represents a narrow class of juvenile offenders, those resentenced
from life to term-of-years sentences after Graham, for crimes committed before
chapter 2014-220’s July 1, 2014, effective date. Kelsey argues that his sentence
does not currently provide the relief specified in our previous decisions and seeks
the judicial review granted to other defendants who, like him, were sentenced to
terms that will not provide them a meaningful opportunity for relief in their
respective lifetimes. We agree.
After we made clear that Graham does indeed apply to term-of-years
sentences, we have declined to require that such sentences must be “de facto life”
sentences for Graham to apply. See, e.g., Guzman v. State, 183 So. 3d 1025, 1026
(Fla. 2016). By using chapter 2014-220 as a guide, we avoid second-guessing the
legislative contemplation that resulted in the twenty-year cutoff for judicial review
contained in the law. However, in applying chapter 2014-220, we agree with the
State that the new sentencing scheme contemplates the possibility of a life sentence
for a juvenile nonhomicide offender. See Horsley, 160 So. 3d at 404 (“Juveniles
convicted of nonhomicide offenses, thereby implicating Graham rather than Miller,
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also may be sentenced to life imprisonment if the trial court, after considering the
specified factors during an individualized sentencing hearing, determines that a life
sentence is appropriate.” (citing ch. 2014-220 §§ 1, 3, Laws of Fla.)). Because we
determine that resentencing is the appropriate remedy, the trial courts may embrace
all of the provisions of chapter 2014-220 and are not required to limit themselves
to only applying the judicial review provision. This would mean that if the State
seeks a life sentence, the trial court’s determination would have to be informed by
individualized sentencing considerations.
Kelsey further argues that he has a reasonable expectation of finality in his
forty-five-year prison term because his term is lawful apart from its failure to
provide judicial review. We disagree.
In Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003), we held that “[o]nce a
sentence has been imposed and the person begins to serve the sentence, that
sentence may not be increased without running afoul of double jeopardy
principles.” (citing Lippman v. State, 633 So. 2d 1061 (Fla. 1994); Clark v. State,
579 So. 2d 109 (Fla. 1991)). To do so, we articulated, was a clear violation of the
Double Jeopardy Clause. Id. (citing State v. Wilson, 680 So. 2d 411, 413 (Fla.
1996)). In 2012, we clarified that jeopardy attaches only to a legal sentence.
Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (citing Harris v. State, 645 So. 2d
386 388 (Fla. 1994)).
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Therefore, jeopardy has not attached to Kelsey’s illegal sentence, and when
he is resentenced according to the provisions of chapter 2014-220, the State may
again seek life imprisonment with judicial review. Kelsey originally began serving
his sentence as a life sentence, but that sentence became illegal when the Supreme
Court issued Graham and Kelsey successfully sought relief. However, his sentence
was unconstitutional not because of the length of his sentence, but because it did
not provide him a meaningful opportunity for early release based on maturation
and rehabilitation. Accordingly, Kelsey’s resentencing under the provisions of
chapter 2014-220 would not place him in any worse position than he would have
been had he initially faced post-Graham resentencing under the statute.
For these reasons, there is no compelling reason that the State must be
precluded from seeking a life sentence that complied with Graham:
A State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime. What the State
must do, however, is give defendants like Graham some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in the first instance, to explore the
means and mechanisms for compliance.
Graham, 560 U.S. at 75. In Henry, we determined that the Legislature’s remedy
was the appropriate remedy in these cases, and the Legislature has determined that
the “means and mechanisms for compliance” with Graham are to provide judicial
review for juvenile offenders who are sentenced to terms longer than twenty years.
Therefore Kelsey is entitled to resentencing under those provisions. We therefore
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answer the rephrased question in the affirmative and remand for further
proceedings consistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., and PERRY,
J., concur.
POLSTON, J., dissents with an opinion, in which LEWIS and CANADY, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur with the majority that juvenile offenders like Kelsey, who were
previously resentenced after the United States Supreme Court decided Graham v.
Florida, 560 U.S. 48 (2010), but before the Legislature enacted chapter 2014-220,
Laws of Florida, are entitled to resentencing under this sentencing scheme.
Majority op. at 14. Resentencing under this new juvenile sentencing scheme
includes, in most instances, the benefit of judicial review of the sentence as set
forth in section 921.1402(2), Florida Statutes (2014). See majority op. at 11-12.
I write to emphasize that, in this case, even though our precedent in Dunbar
v. State, 89 So. 3d 901 (Fla. 2012), does not preclude the State from seeking a life
sentence on remand because Kelsey’s previously imposed sentence was illegal, the
individualized sentencing consideration required by Graham and our juvenile
sentencing precedent will likely preclude such a sentence. Indeed, as I explain
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below, I would conclude that Kelsey is precluded from being resentenced to a term
exceeding his current forty-five-year sentence when the sentencing court takes into
account all of the sentencing factors set forth in section 921.1401(2).
As we explained in Landrum v. State, chapter 2014-220 sets forth the
individualized sentencing considerations that a sentencing court must consider
“when determining if a juvenile offender should be sentenced to life
imprisonment.” 192 So. 3d 459, 466 (Fla. 2016). These considerations have since
been codified in section 921.1401(2), Florida Statutes (2014), and include the
following sentencing factors:
(a) The nature and circumstances of the offense committed by
the defendant.
(b) The effect of the crime on the victim’s family and on the
community.
(c) The defendant’s age, maturity, intellectual capacity, and
mental and emotional health at the time of the offense.
(d) The defendant’s background, including his or her family,
home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to
appreciate risks and consequences on the defendant’s participation in
the offense.
(f) The extent of the defendant’s participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on
the defendant’s actions.
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(h) The nature and extent of the defendant’s prior criminal
history.
(i) The effect, if any, of characteristics attributable to the
defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.
The record in this case demonstrates that, while the sentencing court did not
consider all of the above factors, the sentencing court was aware that the
Legislature was at the time considering legislation later enacted as chapter 2014-
220, Laws of Florida. Indeed, the sentencing court considered some of the
individualized sentencing considerations since codified in section 921.1401(1)
when determining whether to again sentence Kelsey to life in prison or to some
lesser term. As the court explained:
We have to make a decision based on what we know about a person’s
history, taking into account their psychological condition, their mental
health, their age, you know, disabilities, severity of the crime, and all
of the factors that [the psychologist] went over and defense counsel
has adequately covered.
Further, the sentencing court heard testimony from a psychologist who had
evaluated Kelsey, and whose testimony underscored “the special status of juvenile
offenders for purposes of criminal punishment.” Henry v. State, 175 So. 3d 675,
677 (Fla. 2015). As the psychologist explained:
So, you have a 15 year old with a 80 IQ, borderline intellectual
functioning, maybe even a lower achievement at that age, maybe, I
don’t know. And then you have an adolescent, young brain
develop[ment], where they have low decision making ability, frontal
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lobe not being developed, executive functioning not being developed,
and that’s compounded by an IQ in the borderline range.
Secondary, you have a kid whose, you know, in a marginal
lifestyle, some trouble, maybe some special education, and he’s not
functioning very high in terms of cognitive ability and he’s hanging
out with what we call deviant peers. And so—well, I don’t that, I
didn’t see him when he was 15, I’m making some hypothesis from
evaluating juveniles over the years, and often juveniles with this level
of functioning start doing bad things, start doing delinquent type
things because they’re faced with the choice of being called lots of
names, retarded, dumb, dummy, and they don’t want to be called
those things and the way to get around that is to start acting out, and
so they can be called bad, and they get identified as bad, and that’s
part of their personality, and it’s the way they get accepted, and
knowledge of deviant peer groups, but they want to fight against being
called dumb or any of those derogatory words that teenage boys are
apt to use. And so, they overcompensate and they get tough and street
tough and start acting tough, and they start looking like the delinquent
kid, and it’s really because of the way they are in their life, without
enough positive adult mentoring peer, without enough appropriate
prosocial peer groups. So, it has, sorry to use this word, it has a
waterfall effect, you know.
These statements demonstrate that the sentencing court was cognizant of the
United States Supreme Court’s command that the “status of juvenile offenders
warrants different considerations by the states whenever such offenders face
criminal punishments as if they are adults.” Id. at 678. Therefore, even though
chapter 2014-220 “contemplates the possibility of a life sentence for a juvenile
nonhomicide offender,” majority op. at 12, I would conclude that such a possibility
is slim. This is especially so in this case, where the sentencing court previously
tried to comply with Graham during resentencing, expressly considered some of
the sentencing factors now codified in section 921.141, and sentenced the juvenile
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offender to concurrent sentences of forty-five years. Put simply, upon
resentencing, the sentencing court must consider whether Kelsey is the “rare
juvenile offender whose crime reflects irreparable corruption,” and thereby
warrants a life sentence. Horsley, 160 So. 3d at 397 (citing Miller v. Alabama, 132
S. Ct. 2455, 2469 (2012)). In my view, imposing a lengthier sentence in this
nonhomicide case upon consideration of additional individualized sentencing
factors would violate the basic “precept of justice that punishment for crime should
be graduated and proportioned to [the] offense.” Landrum, 192 So. 3d at 460-61
(quoting Graham, 560 U.S. at 59) (noting that upholding a juvenile offender’s life
without parole sentence for second-degree murder “would violate this precept, as a
juvenile convicted of the lesser offense of second-degree murder would receive a
harsher sentence than a juvenile convicted of first-degree murder”).
LABARGA, C.J., and PERRY, J., concur.
POLSTON, J., dissenting.
When Kelsey was fifteen years old, he committed burglary and raped a
pregnant woman at knifepoint in front of her two small children. Unlike the
majority, I would approve the First District Court of Appeal’s decision affirming
Kelsey’s resentencing for these crimes. I also would answer the question as
certified in the negative and hold that “a defendant whose initial sentence for a
nonhomicide crime violate[d] Graham v. Florida, and who [was] resentenced to
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concurrent forty-five year terms, is [not] entitled to a new resentencing under the
framework established in chapter 2014-220, Laws of Florida.” Kelsey v. State,
183 So. 3d 439, 442 (Fla. 1st DCA 2015).
In Graham v. Florida, 560 U.S. 48, 82 (2010), the United States Supreme
Court held the following:
The Constitution prohibits the imposition of a life without
parole sentence on a juvenile offender who did not commit
homicide. A State need not guarantee the offender eventual
release, but if it imposes a sentence of life it must provide him
or her with some realistic opportunity to obtain release before
the end of that term.
Subsequently, this Court in Henry v. State, 175 So. 3d 675, 676 (Fla. 2015),
reviewed a district court decision holding that Graham “does not apply to term-of-
years prison sentences because such sentences do not constitute life
imprisonment.” This Court disagreed and held “that Graham does apply and that
the sentence at issue will not provide a meaningful opportunity for release.” Id.
Specifically, this Court explained that “Graham requires a juvenile nonhomicide
offender, such as Henry, to be afforded such an opportunity during his or her
natural life.” Id. at 679. Then, this Court explained that, “[b]ecause Henry’s
aggregate sentence, which totals ninety years and requires him to be imprisoned
until he is at least nearly ninety-five years old, does not afford him this
opportunity, that sentence is unconstitutional under Graham.” Id. at 679-80.
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In contrast to Henry, Kelsey was sentenced to an aggregate of forty five
years for crimes he committed when he was fifteen years old. Because Kelsey’s
term-of-years aggregate sentence is not a de facto life sentence, Kelsey will have a
meaningful opportunity for release during his natural life. Therefore, Kelsey’s
aggregate sentence does not violate Graham, and he is not entitled to resentencing.
Cf. Henry, 175 So. 3d at 680 (“Because we have determined that Henry’s sentence
is unconstitutional under Graham, we conclude that Henry should be resentenced
in light of the new juvenile sentencing legislation enacted by the Florida
Legislature in 2014, ch. 2014-220, Laws of Fla.”).
Accordingly, I respectfully dissent.
LEWIS and CANADY, JJ., concur.
Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance
First District - Case No. 1D14-518
(Duval County)
Nancy Ann Daniels, Public Defender, and Glen Phillip Gifford, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Virginia Chester Harris, Assistant Attorney General, Tallahassee, Florida,
for Respondent
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Julianne M. Holt, President, Tampa, Florida; and Jonathan Harris Greenberg,
Assistant Public Defender, Miami, Florida,
for Amicus Curiae Florida Public Defender Association, Inc.
Paolo Giuseppe Annino of FSU College of Law Public Interest Law Center,
Tallahassee, Florida; and Marsha L. Levick of the Juvenile Law Center,
Philadelphia, Pennsylvania,
for Amici Curiae FSU College of Law Public Interest Law Center, Juvenile
Law Center, ACLU of Florida, CFFSY, The Center on Children and
Families at UF, Children and Youth Law Clinic at UM, FACDL, FCF,
FJRRP At FIU, FLS, National Association of Counsel for Children,
NAFPD, NJDC, SJDC, and SPLC
- 21 -
Thomas Kelsey v. State of Florida
Combined Opinion