KENNETH LOWE

v.

STATE OF FLORIDA

PER CURIAM.

AFFIRMED. Robinson v. State, 268 So. 3d 848, 848 (Fla. 1st DCA 2019) (quoting Dortch v. State, 266 So. 3d 1240, 1243–44 (Fla. 1st DCA 2019)); Dubon v. State, 295 So. 3d 259, 280 (Fla. 4th DCA 2020).

MAKAR and JAY, JJ., concur; TANENBAUM, J., concurs in result with opinion.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

TANENBAUM, J., concurring in result. In 1975, Kenneth Lowe pleaded guilty to involuntary sexual battery. He received a life sentence for horrific conduct he engaged in when he was sixteen years old. His sentence did not just carry the possibility of parole; Lowe was paroled—twice. Lowe also had his parole revoked twice, meaning he was back in prison when, in 2017, he filed for post-conviction relief, asking that his sentence be vacated as unconstitutional based on the U.S. Supreme Court’s decision in Graham v. Florida, 560 U.S. 48 (2010), and the Florida Supreme Court’s decision in Atwell v. State, 197 So. 3d 1040 (Fla. 2016).

Graham established a categorical rule prohibiting a life-without-parole-eligibility sentence for a juvenile who committed a non-homicide offense. 560 U.S. at 82. “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.; see also Henry v. State, 175 So. 3d 675, 680 (Fla. 2015) (determining “that Graham applies to ensure 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”). In Atwell our supreme court took issue with Florida’s parole system and concluded that even a juvenile with a parole-eligible life sentence, realistically speaking, was not going to be granted parole before he died in prison. According to the Atwell court, in Florida, a parole-eligible life sentence was the same as a life sentence without parole. Atwell, 197 So. 3d at 1050. Worthy of note is the fact the supreme court effectively abrogated Atwell a couple years later. See Franklin v. State, 258 So. 3d 1239 (Fla. 2018).

Of course, Lowe did not just have a meaningful opportunity for release; he in fact was released two times. Graham and Atwell, then, simply did not apply to Lowe’s sentence, and one justifiably might have thought that Lowe’s motion would have been summarily denied. It was not. For some reason, the State conceded illegality, so the trial court instead vacated Lowe’s sentence. At resentencing (which, by the way, happened after the abrogation of Atwell), the trial court took testimony and considered the pre-sentence investigation report from the Department of Corrections. It then imposed the same life sentence with parole eligibility that Lowe originally had received. That sentence is under review in this appeal.

I concur in affirming that sentence, but I do not join the majority’s citation disposition because the cases referenced have to do with application of section 921.1401, Florida Statutes, and Florida Rule of Criminal Procedure 3.781. On their own terms, these provisions apply to offenses committed after July 1, 2014. See § 921.1401(1), Fla. Stat.; Fla. R. Crim. P. 3.781(a). Lowe committed his offense decades earlier than that. It is true that the supreme court tapped these provisions to apply at a resentencing where the original sentence was “unconstitutional under Graham.” Henry v. State, 175 So. 3d 675, 680 (Fla. 2015). Lowe’s sentence, however, was never unconstitutional under Graham or Atwell, regardless of why the trial court vacated the original sentence. Because there is no legal basis for these provisions to apply, they could not impose any restraints on how the trial court went about determining Lowe’s sentence anew. In the light of this, the trial court was not required to consider any specified factors or make any findings, although it appears the trial court did both anyway.

The trial court was well within its discretion to impose another legal, parole-eligible life sentence, and the sentence should not be subject to appellate review that is any more exacting than the review applied to any other sentence. The trial court’s sentence is wholly without error. I agree we should affirm it.

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Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Tabitha Rae Herrera, Assistant Attorney General, Tallahassee, for Appellee.