Third District Court of Appeal
State of Florida
Opinion filed October 11, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1604
Lower Tribunal No. 79-1174
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Jeffrey L. Vennisee,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Jason E. Bloch, Judge.
Jeffrey L. Vennisee, in proper person.
Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
ROTHENBERG, C.J.
Jeffrey L. Vennisee (“Vennisee”) appeals the denial of his motion for
postconviction relief. Vennisee, who was a juvenile when he committed a murder
on December 10, 1998, was indicted for first-degree murder. On March 26, 1979,
Vennisee pled guilty to second-degree murder and was sentenced to life with the
possibility of parole. Vennisee contends that his sentence is unconstitutional under
the Eighth Amendment and based on the United States Supreme Court’s decision
in Miller v. Alabama, 567 U.S. 460 (2012), and the Florida Supreme Court’s
decision in Atwell v. State, 197 So. 3d 1040 (Fla. 2016), and that he is entitled to a
resentencing hearing and to be resentenced pursuant to chapter 2014-220, Laws of
Florida, § 1. For the reasons that follow, we affirm the trial court’s order denying
Vennisee’s motion for postconviction relief.
The Evolving Juvenile Sentencing Case Law
In Roper v. Simmons, 543 U.S. 551 (2005), the United States Supreme
Court held that a sentence of death for a crime committed by a juvenile violates the
Eighth Amendment’s prohibition against cruel and unusual punishment. Five
years later, the United States Supreme Court addressed whether a life sentence
without the possibility of parole imposed upon a juvenile who committed a non-
homicide offense was also violative of the Eighth Amendment in Graham v.
Florida, 560 U.S. 48 (2010).
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Graham was sixteen when he committed an armed burglary and an
attempted armed robbery. Based on a negotiated plea, Graham pled guilty to the
charges, adjudication was withheld, and Graham was placed on probation. Less
than six months after being released from custody, Graham, while still a juvenile,
committed an armed home invasion robbery. Graham, 560 U.S. at 54-55. After
conducting a hearing, the trial court found that Graham had violated his probation,
adjudicated him guilty of the prior armed burglary and attempted armed robbery,
and imposed a sentence of life imprisonment for the armed burglary and a fifteen-
year sentence for the attempted armed robbery. Id. at 57. Because Florida had
abolished the parole system, a life sentence provided no possibility of release
absent the grant of executive clemency. See § 921.002(1)(c), Fla. Stat. (2003).
The United States Supreme Court concluded that the life without the possibility for
parole sentence that Graham received was akin to a death sentence in that the
forfeiture of Graham’s life was irrevocable—that good behavior and character
improvement were immaterial as he must remain in prison for the remainder of his
life. Graham, 560 U.S. at 69-70. Thus, the United States Supreme Court found that
Graham’s life sentence violated the Eighth Amendment and reversed.
It is important to note, however, that while the Graham Court held that a life
sentence without the possibility for parole imposed upon a juvenile for a non-
homicide offense violates the Eighth Amendment, the Court did not require that
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the sentence imposed guarantee the juvenile offender’s ultimate release from
incarceration. In fact, the Court stated the opposite.
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 bears emphasis, however, that while the Eighth
Amendment prohibits a State from imposing a life without parole
sentence on a juvenile nonhomicide offender, it does not require the
State to release that offender during his natural life. Those who
commit truly horrifying crimes as juveniles may turn out to be
irredeemable, and thus deserving of incarceration for the duration of
their lives. The Eighth Amendment does not foreclose the possibility
that persons convicted of nonhomicide crimes committed before
adulthood will remain behind bars for life. It does prohibit States
from making the judgment at the outset that those offenders never will
be fit to reenter society.
Id. at 75.
Two years after addressing life sentences without the possibility of parole
imposed upon juveniles who commit non-homicide offenses in Graham, the Court
addressed the imposition of life without parole sentences imposed upon juveniles
who commit homicide offenses in Miller. Although the United States Supreme
Court did not prohibit life sentences for juveniles who commit homicide offenses,
it held that mandatory life sentences without the possibility of parole which do not
take into account the defendant’s “age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences,” are
unconstitutional. Miller, 567 U.S. at 477. “We therefore hold that the Eighth
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Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Miller, 567 U.S. 479. The Court,
however, did not issue a categorical bar for life without parole sentences for
juvenile offenders. “Because [our] holding is sufficient to decide these cases, we
do not consider Jackson’s and Miller’s alternative argument that the Eighth
Amendment requires a categorical bar on life without parole for juveniles . . . .”
Id. at 479.
Thus under Graham and Miller, no juvenile offender may be sentenced to a
mandatory life sentence without the possibility of parole, regardless of whether
the offense is a homicide or a non-homicide offense. Another important decision
was also made by the United States Supreme Court in Miller. Besides prohibiting
mandatory life sentences without the possibility of parole, the Court held that
juvenile offenders are constitutionally entitled to individualized sentencing at
which the judge or jury will have the opportunity to consider mitigating
circumstances, including the offender’s age and the circumstances attendant to it,
such as immaturity, impetuosity, and the failure to appreciate the consequences.
Miller, 567 U.S. at 776-77.
In Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015), the Florida Supreme
Court concluded that it was patently unfair to treat similar juvenile offenders
differently based solely on when their cases were decided. Thus, the Court held
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that Graham and Miller must be applied retroactively to juvenile offenders’
sentences that were final when these decisions were issued.
Also in 2015, the Florida Supreme Court issued its opinion in Henry v.
State, 175 So. 3d 675, 680 (Fla. 2015), which extended the Roper and Graham
conclusion—that juvenile life without parole sentences for non-homicide offenses
violates the Eighth Amendment—to term-of-years sentences that do not afford any
meaningful opportunity to obtain release based on the offender’s demonstrated
maturity and rehabilitation. Because the defendant in Henry, who was a juvenile
when he committed several non-homicide offenses, received an aggregate sentence
totaling ninety years, which required that he remain imprisoned until he was at
least ninety-five years old with no opportunity to be considered for an earlier
release, the Florida Supreme Court held that his sentence was unconstitutional
under Graham, and that Henry must be resentenced under the new juvenile
sentencing legislation enacted by the Florida Legislature in 2014 (Chapter 2014-
220, Laws of Florida). See also Gridine v. State, 175 So. 3d 672, 674-75 (Fla.
2015) (holding that a seventy-five-year sentence for a juvenile who was convicted
of an attempted murder was unconstitutional because it failed to provide for a
meaningful opportunity for early release).
In Lawton v. State, 181 So. 3d 452, 453 (Fla. 2015), the Florida Supreme
Court applied the prohibition of life sentences without the possibility of parole for
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juveniles convicted of non-homicide offenses even when the juvenile commits a
homicide during the same criminal episode. In Kelsey v. State, 206 So. 3d 5 (Fla.
2016), the Florida Supreme Court also held that the trial court must apply and
comply with the provisions of Chapter 2014-220 for those juvenile offenders who
were convicted of non-homicide offenses; initially received a life sentence for the
non-homicide offense(s); were resentenced to a term-of-years sentence pursuant to
Graham because the sentence violated the Eighth Amendment; and received a new
sentence that is longer than twenty years.
Consistent with this historical case law evolution regarding the sentencing of
juvenile offenders, the Florida Supreme Court held that a mandatory life sentence,
even with the possibility of parole after the juvenile offender serves twenty-five
years imposed for a homicide offense, is unconstitutional. Atwell v. State, 197 So.
3d 1040 (Fla. 2016). The Florida Supreme Court’s extension of Miller in Atwell
(which had only found that mandatory life sentences without the possibility of
parole for juveniles convicted of a homicide were unconstitutional), was based on
the Florida Supreme Court’s conclusion that the parole system in effect at the time
Atwell was sentenced was the “practical equivalent” of a life sentence without the
possibility of parole because Atwell’s presumptive parole release date had recently
been set to 2130, which would be at age 156, thus far exceeding Atwell’s life
expectancy. Id. at 1044.
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We summarize the evolving case law as follows. Mandatory life sentences,
with or without the possibility of parole for juveniles convicted of homicide and
non-homicide offenses are unconstitutional under Graham, Miller, and Atwell.
Sentences for non-homicide offenses which do not provide for a meaningful
opportunity to obtain release based on a demonstration of maturity and
rehabilitation, either imposed initially or upon a resentencing, are unconstitutional
under Henry, Gridine, and Atwell. These holdings are to be applied retroactively.
Falcon, 162 So. 3d at 962. And when juveniles are resentenced for non-homicide
offenses because their original sentence violated Graham, they must be resentenced
pursuant to Chapter 2014-220. Kelsey, 206 So. 3d at 5.
The Instant Case
The offense at issue in this appeal is a homicide. Vennisee was seventeen
when the homicide was committed. Vennisee pled guilty to the homicide in 1979
and was sentenced to life in prison with the possibility of parole. Unlike the
juvenile in Miller, who received a mandatory life sentence without the possibility
of parole, and the juvenile in Atwell, whose presumptive release date provided him
with no meaningful opportunity for early release, Vennisee’s sentence provided
him with a meaningful opportunity for early release as he was released on October
8, 2002 after serving approximately twenty-three years in prison. When paroled,
Vennisee was forty years old.
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In 2007, Vennisee violated his parole, but he was given another opportunity
to demonstrate his maturity, rehabilitation, and ability to live outside of the prison
environment. His parole was reinstated, and he was placed on community control.
Approximately four months later, Vennisee violated his community control and
parole by committing and subsequently being convicted of committing the
following felony offenses, for which he was sentenced to ten years imprisonment,
and his parole was revoked.
Case number: F08-14834—possession of a firearm by a convicted
felon.
Case number: F08-10916—strong-arm robbery and planting a hoax
bomb.
Case number: FO8-10917—attempted strong-arm robbery and
planting a hoax bomb.
Case number: F08-14893—strong-arm robbery and planting a hoax
bomb.
On April 16, 2015, Vennisee filed a motion for postconviction relief arguing
that he is entitled to a resentencing pursuant to Miller, Graham, and Falcon for his
conviction of the homicide offense that he committed when he was a juvenile. The
trial court denied Vennisee’s motion on December 31, 2015, finding that
Vennisee’s sentence of life with parole for a homicide offense did not violate
Miller (and thus did not violate Falcon, which provides for retroactive application
of Miller). Vennisee did not initially appeal the trial court’s order denying his
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motion for postconviction relief, but on July 8, 2016, this Court granted Vennisee a
belated appeal.
Subsequent to the issuance of the trial court’s order and during the pendency
of this appeal, the Florida Supreme Court decided Atwell (extending Miller to
include juveniles convicted of homicides and who received life sentences with the
possibility of parole). We will, therefore, analyze Vennisee’s arguments under the
most current status of the relevant law.
As already discussed, where the Court in Miller only found that mandatory
life sentences without the possibility of parole for homicides committed by
juveniles were violative of the Eighth Amendment, since Vennisee filed his appeal,
the Florida Supreme Court extended the Miller holding to mandatory life with
parole sentences for homicide offenses in Atwell. Thus, Vennisee is entitled to the
benefit and retroactive application of Atwell.
We conclude, as this Court, the First District Court of Appeal, and the
Fourth District Court of Appeal have already concluded in similar cases, that
because Vennisee has already been provided with a meaningful opportunity to
obtain release, was released, and violated the terms of his release by committing
new felony offenses while an adult, Miller, Graham, and Atwell are not implicated,
and Vennisee is not entitled to a resentencing because his sentence is not cruel and
unusual under the Eighth Amendment.
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In Rooks v. State, 42 Fla. L. Weekly D1573 (Fla. 3d DCA July 12, 2017),
this Court addressed a similar situation. Rooks was convicted in 1972 for a non-
homicide offense he committed while a juvenile, and he was sentenced to life with
parole eligibility. Rooks was paroled in 1980 at the age of twenty-four after
serving eight and one-half years. In 1986, at the age of thirty, Rooks violated his
parole and was returned to prison as a parole violator. In 2006, at the age of fifty,
Rooks was again released on parole, and although he was initially charged with
violating his parole, he was not returned to prison and his parole was restored. In
2014, at the age of fifty-eight, Rooks was arrested for trafficking in heroin, and as
a result, in 2015, his parole was revoked and he was returned to prison.
Thereafter, Rooks filed a motion to correct what he claimed was an illegal
sentence based on Graham, Miller, Henry, and Atwell. The trial court denied
Rooks’ motion, and this Court affirmed after finding that the parole system and
guidelines, under which Atwell was serving his sentence, differed from the parole
system and guidelines applicable to Rooks, as evident from the fact that Rooks was
released on parole after serving only eight and one-half years of a life sentence,
whereas Atwell’s presumptive parole release date was in 2130, at which point
Atwell would be 156 years old. Rooks, 42 Fla. L. Weekly at D1575-76. Thus,
Rooks’ sentence did not resemble a mandatory life without parole sentence in
violation of Miller or Atwell, nor an aggregate sentence that failed to provide
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Rooks with any meaningful review in violation of Henry and Atwell. Rooks, 42
Fla. L. Weekly at D1575-76. This Court therefore concluded that neither
Graham/Miller nor Henry/Atwell were implicated, Rooks’ sentence was not illegal,
and he was not entitled to resentencing under Florida’s newly-enacted juvenile
sentencing scheme. Rooks, 42 Fla. L. Weekly at D1576.
The First District and Fourth District Courts of Appeal reached the same
conclusion in Currie v. State, 219 So. 3d 960 (Fla. 1st DCA 2017), and Rogers v.
State, 42 Fla. L. Weekly D1493 (Fla. 4th DCA July 5, 2017), respectively. Currie
was a juvenile when he committed an armed sexual battery and was sentenced to
life in prison with the possibility of parole. Currie, 219 So. 3d at 960. When
Currie was twenty-five years old he was released on parole. He subsequently
violated his parole and was returned to prison. The First District concluded that
although Currie was a juvenile when he committed these offenses and he received
a life sentence, he was “not entitled to be resentenced because he has not received
the functional equivalent of a life sentence. He has already been released once,
and he has the potential to be released again.” Id.
In 1972, Rogers was convicted of a robbery that he committed when he was
seventeen and sentenced to life in prison with the possibility of parole. Rogers, 42
Fla. L. Weekly at D1493. After spending seven years in prison, he was released on
parole. Id. In 1979, at the age of twenty-eight, Rogers was reincarcerated when he
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violated his parole by committing an armed robbery. Id. Rogers was released on
parole again in 1990, but reincarcerated when he violated his parole by committing
a grand theft in 1999. Id. Rogers claimed that his life sentence for a non-homicide
offense he committed as a juvenile was unconstitutional pursuant to Graham and
sought resentencing pursuant to chapter 2014-220. Id. at D1493-94. The Fourth
District concluded that because Rogers was released on parole, he could not show
a violation of the Eighth Amendment under Graham, which held that juvenile
offenders who commit non-homicide offenses do not have to be guaranteed
eventual freedom. Id. They must only be afforded a meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation. Id. As the
Fourth District noted in Rogers:
A juvenile offender who has actually been released from a prison
sentence has received more than what Graham requires. Rogers had
an opportunity for release and was in fact released from prison twice
on parole. He has not shown that his sentence violates the Eighth
Amendment under Graham, and he is not entitled to resentencing.
Id. (footnote omitted); see also Guzman v. State, 183 So. 3d 1025, 1027 (Fla.
2016) (Pariente, J., concurring) (concluding that Guzman, who was fourteen when
he committed several non-homicide offenses, was provided an opportunity for
rehabilitation, but committed a kidnapping as an adult while on probation for the
offenses committed as a juvenile, was “removed from the purview of Graham” and
was not entitled to be resentenced); Davis v. State, 42 Fla. L. Weekly D1481, 1482
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(Fla. 5th DCA June 30, 2017) (concluding that, although Davis was seventeen
when he committed non-homicide offenses, because he was eighteen when he
violated his youthful offender sentence by committing an armed carjacking and he
received an aggregate forty-five year prison sentence for the offenses he committed
as a juvenile, he was not entitled to be sentenced under Florida’s new juvenile
sentencing scheme in order to be in compliance with Graham and Miller).
CONCLUSION
Vennisee, who committed a homicide while a juvenile, was sentenced in
1979 to life with the possibility of parole. After serving approximately twenty-
three years in prison, he was released on parole in 2002. Vennisee violated his
parole in 2007, received another chance, and then violated his parole again by
committing seven new felony offenses. His parole was revoked, and he was
returned to prison. Because Vennisee has already been provided with a meaningful
opportunity to obtain release, was released, and then was returned to prison after he
violated the terms of his release by committing new felony offenses as an adult (he
was approximately forty-five years old), we conclude that Graham, Miller, and
Atwell are not implicated, Vennisee’s sentence is not illegal, and he is not entitled
to resentencing under Chapter 2014-220. He has, in fact, received more than
Graham, Miller, and Atwell require.
Affirmed.
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