DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
COLBY MCCOGGLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2023-1267
[April 10, 2024]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Lawrence M. Mirman, Judge; L.T. Case No.
561994CF000615D.
Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,
Senior Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant, Colby McCoggle, appeals the sentence imposed by the trial
court upon resentencing from his 1994 conviction for robbery and murder,
which he committed while a juvenile. He claims that his due process rights
were violated, because the sentence was imposed without his presence and
without a full sentencing hearing. Because the trial court had no
discretion but to impose his original sentence based upon the decisional
law at the time of resentencing, we affirm.
Background
In 1994, appellant and three co-defendants committed a robbery
during which a victim was shot and killed. Appellant was sixteen years
old at the time but was tried as an adult. A jury convicted appellant of
first-degree murder and of attempted armed robbery.
For the first-degree murder, the trial court imposed the mandatory
sentence of life in prison, with parole eligibility after twenty-five years.
§ 775.082(1), Fla. Stat. (1993) (emphasis added) (“A person who has been
convicted of a capital felony shall be punished by life imprisonment and
shall be required to serve no less than 25 years before becoming eligible
for parole . . . .”). The trial court also imposed a sentence of ninety-two-
and-a-half months for the attempted robbery, to be served consecutively.
The judgment and sentence were affirmed on appeal. McCoggle v. State,
674 So. 2d 140 (Fla. 4th DCA 1996).
In 2010, the United States Supreme Court decided the case Graham v.
Florida, 560 U.S. 48 (2010), where the Court held that the Eighth
Amendment prohibits life sentences without parole for juvenile
nonhomicide offenders. Id. at 82. The Court held that “[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.
In 2012, the United States Supreme Court expanded upon Graham and
decided Miller v. Alabama, 567 U.S. 460 (2012), holding 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. at 465. The Court concluded that a mandatory life
sentence did not take into account a juvenile’s lessened culpability
because of age, nor a juvenile’s “capacity for change.” Id. While the Miller
court “[did] not foreclose a sentencer’s ability to [impose a life sentence
without possibility of parole] in homicide cases,” the Court did “require
[the sentencer] to take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime
in prison.” Id. at 480.
In response to Miller, the Florida Legislature amended section 775.082
to provide a life sentence for a juvenile who commits a capital crime, or a
felony enhanced to a capital felony, but it included a review procedure to
determine whether such sentence was appropriate under the
circumstances and for a further review after twenty-five years.
§ 921.1401(1), Fla. Stat. (2014). Although sections 921.1401 and
921.1402 were enacted in July 2014, in Horsley v. State, 160 So. 3d 393
(Fla. 2015), our supreme court held that these provisions applied
retroactively “to all juvenile offenders whose sentences are
unconstitutional under Miller.” Id. at 405.
Horsley prompted appellant to file a motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850, arguing that his
mandatory life sentence with parole eligibility after twenty-five years was
unconstitutional following Miller, and he was entitled to resentencing
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under the recently enacted statutes. After appellant filed his motion for
resentencing, our supreme court decided Atwell v. State, 197 So. 3d 1040
(Fla. 2016), in which the court held that a defendant’s life sentence with
the possibility of parole after twenty-five years—the same sentence
imposed on appellant—was unconstitutional, and the defendant was
entitled to a resentencing under the 2014 amendments as contemplated
in Horsley. Id. at 1050. After the Atwell decision, the State conceded that
appellant was entitled to resentencing. In August 2016, the trial court
entered an order granting appellant’s motion for relief and setting the case
for resentencing. The State did not appeal this order or move for rehearing.
Before the resentencing hearing took place, however, our supreme
court decided State v. Michel, 257 So. 3d 3 (Fla. 2018), where the court
receded from Atwell and held that juvenile offenders sentenced to life with
possibility of parole after twenty-five years were not entitled to
resentencing under Miller and the 2014 amendments. Id. at 4. The court
relied upon Virginia v. LeBlanc, 582 U.S. 91 (2017), where the United
States Supreme Court held that Virginia’s geriatric release program was
not an unreasonable application of Graham’s rule that a juvenile offender
must have a meaningful opportunity to obtain release based on
rehabilitation and other factors. Id. at 94. Our supreme court then held
that Florida’s parole system conformed with United States Supreme Court
case law, as it provided for individual review and a meaningful opportunity
to obtain release:
[I]f a Virginia juvenile life sentence subject to possible
conditional geriatric release after four decades of
incarceration based upon the individualized considerations
quoted above conforms to current case law from the United
States Supreme Court, a Florida juvenile life sentence with the
possibility of parole after 25 years does too.
We hold that juvenile offenders’ sentences of life with the
possibility of parole after 25 years under Florida’s parole
system do not violate “Graham’s requirement that
juveniles . . . have a meaningful opportunity to receive
parole.” LeBlanc, 137 S. Ct. at 1729. Therefore, such juvenile
offenders are not entitled to resentencing under section
921.1402, Florida Statutes.
Michel, 257 So. 3d at 7–8 (internal citations omitted). Shortly thereafter,
in Franklin v. State, 258 So. 3d 1239 (Fla. 2018), our supreme court
further distanced itself from Atwell and firmly held that a life sentence with
the possibility of parole did not violate the Eighth Amendment. Id. at 1241
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(“As in Michel, because Franklin’s sentences include eligibility for parole
there is no violation of the categorical rule announced in Graham.”).
The State filed opposition to resentencing appellant, arguing that based
upon Michel, appellant was not entitled to resentencing, because life with
the possibility of parole did not violate the principles of Miller. Appellant
pointed out that because the trial court had granted resentencing and the
State had not appealed that order, he was entitled to the resentencing,
citing Taylor v. State, 140 So. 3d 526, 528 (Fla. 2014) (“[A]n order disposing
of a [rule 3.850] postconviction motion which partially denies and partially
grants relief is a final order for purposes of appeal, even if the relief granted
requires subsequent action in the underlying case, such as
resentencing.”). The State conceded that resentencing was therefore
required.
The State’s memorandum for the resentencing hearing argued that
appellant’s resentencing did not have to conform to Miller and the 2014
statutory amendments, because in Michel, the supreme court held that a
juvenile offender’s sentence of life in prison with possibility of parole after
twenty-five years did not violate the Eighth Amendment, and that juveniles
who received such a sentence were not entitled to resentencing under
section 921.1402. See Michel, 257 So. 3d at 4. The State cited Garner v.
State, 310 So. 3d 484 (Fla. 2d DCA 2020), which under similar
circumstances as this case, held that a defendant is entitled to
resentencing, but the sentence may be the same as the original sentence,
because the decisional law at the time of resentencing applies. Id. at 485.
Thus, the State argued that because appellant’s original sentence was not
unconstitutional under the current decisional law, and because that
sentence was mandatory by statute, appellant must be resentenced to the
same sentence which he originally received.
After a status conference in August 2022, the trial court concluded that
Michel applied, and appellant’s original sentence was constitutional.
Therefore, the trial court was limited to the ministerial act of reimposing
the same sentence.
In May 2023, the trial court issued a written resentencing order,
resentencing appellant to life in prison with a minimum of twenty-five
years before parole eligibility. The trial court reasoned that because
section 775.082(1), Florida Statutes (1993), imposed a mandatory
sentence of life in prison with at least twenty-five years served before parole
eligibility, and because that statute did not violate Miller, the statute was
constitutional, and the court was required to reimpose appellant’s original
sentence. The trial court also wrote that because the court had no
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discretion, appellant’s presence was not required for resentencing. In an
amended order, the trial court credited appellant for time served and noted
that he was now eligible for parole. Appellant now appeals.
Analysis
Appellant contends that the trial court denied him due process by
failing to conduct a full resentencing hearing and sentencing him without
his presence. If appellant was entitled to a full de novo hearing as he
argues, the deprivation of such a hearing would amount to fundamental
error. See Dean v. State, 294 So. 3d 350, 354 (Fla. 4th DCA 2020) (quoting
Jackson v. State, 880 So. 2d 1241, 1243 (Fla. 1st DCA 2004)) (“Because
the deprivation of the right to due process constitutes fundamental error,
a harmless error review is not appropriate.”). Whether a trial court violated
a defendant’s due process rights is an issue of law reviewed de novo. Norvil
v. State, 191 So. 3d 406, 408 (Fla. 2016).
In State v. Fleming, 61 So. 3d 399, 408 (Fla. 2011), the supreme court
explained the due process requirements on resentencing:
[W]hen a sentence is vacated, the defendant is resentenced at
a new proceeding subject to the full panoply of due process
rights, and . . . the decisional law in effect at the time of a de
novo resentencing or before that resentencing is final applies
to those proceedings and the issues raised on appeal.
Thus, while appellant was entitled to the “full panoply of due process
rights” at resentencing, the decisional law in effect at his resentencing
applied to the proceeding. Id. Under the effective decisional law when
appellant was resentenced, sentencing a juvenile to life in prison with the
possibility of parole is not unconstitutional. Michel, 257 So. 3d at 8;
Franklin, 258 So. 3d at 1241.
Accordingly, because it was not unconstitutional, section 775.082(1),
Florida Statutes (1993), was the applicable sentencing statute for
appellant’s offense committed in 1994. That statute provided a capital
offender “shall be punished by life imprisonment and shall be required to
serve no less than 25 years before becoming eligible for parole.” §
775.082(1), Fla. Stat. (1993). Therefore, following the decisional law at the
time of resentencing, the trial court had no option but to impose the
original 1994 sentence of life in prison, with at least twenty-five years
served before parole eligibility.
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A full resentencing hearing is not necessary when the resentencing is a
ministerial act. See Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th
DCA 2001) (“The imposition of a sentence is a crucial stage at which the
defendant is entitled to be present. An exception is made in resentencing
cases where all that is required on remand is a ministerial act of sentence
correction.”); Lecroy v. State, 954 So. 2d 747, 748 (Fla. 4th DCA 2007)
(holding that defendant was not entitled to resentencing hearing where the
trial court had no jurisdiction in the sentence following a supreme court
mandate).
As our supreme court provided in Jordan v. State, 143 So. 3d 335 (Fla.
2014):
“[R]esentencing a defendant in his absence will be harmless
where it involves only a ministerial act.” [Orta v. State, 919
So. 2d 602, 604 (Fla. 3d DCA 2006]; [Acosta v. State, 46 So.
3d 1179, 1180 (Fla. 2d DCA 2010)] (explaining that the right
of presence does not exist where the resentencing “concerns
issues that are purely ministerial in nature”). . . . “A defendant
will receive a new sentencing hearing if the resentencing
involves additional consideration or sentencing discretion, not
if the act to be done is ministerial in nature, such as striking
an improper portion of the sentence.” Mullins v. State, 997 So.
2d 443, 445 (Fla. 3d DCA 2008). Therefore, a resentencing at
which the trial judge has judicial discretion is not a ministerial
act.
Id. at 339.
Thus, where resentencing does not involve the consideration of any
additional evidence, and where the trial court does not have any discretion
in the new sentence it imposes, resentencing is a ministerial act. That is
the case for appellant’s resentencing. The trial court did not have any
discretion and was required to impose the original sentence. Under this
circumstance, appellant was not entitled to a full de novo resentencing
hearing.
Appellant argues that at a de novo resentencing hearing, the trial court
would have discretion to consider whether the parole system did not
provide him a meaningful opportunity for release. However, in Franklin,
our supreme court wrote:
As we held in Michel, involving a juvenile homicide offender
sentenced to life with the possibility of parole after 25 years,
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Florida’s statutory parole process fulfills Graham’s requirement
that juveniles be given a “meaningful opportunity” to be
considered for release during their natural life based upon
“normal parole factors,” LeBlanc, 137 S. Ct. at 1729, as it
includes initial and subsequent parole reviews based upon
individualized considerations before the Florida Parole
Commission that are subject to judicial review, Michel, 257
So. 3d at 6 (citing §§ 947.16-.174, Fla. Stat.).
258 So. 3d at 1241 (emphasis supplied). Because the supreme court has
already determined the issue, the trial court did not have the discretion to
ignore Franklin’s holding.
Conclusion
Although appellant was entitled to resentencing after the trial court
granted his rule 3.850 motion based upon Atwell, once Michel and Franklin
were decided, appellant’s original sentence was constitutional. At
appellant’s resentencing, not only did the trial court have no discretion,
but neither the State nor appellant had any burden to establish any fact
needed to complete resentencing. This sentencing was truly ministerial,
and the trial court did not err in imposing the original sentence again
without a full sentencing hearing.
Affirmed.
LEVINE and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7