TERRELL FERGUSON

v.

THE STATE OF FLORIDA

FERNANDEZ, J.

The defendant, Terrell Ferguson, appeals the trial court’s partial denial of his rule 3.850 post-conviction motion to vacate defendant’s sentence. Defendant is serving concurrent sentences of thirty-five years for one count of second-degree murder and two counts of non-homicide offences (armed robbery and armed burglary) committed when he was a juvenile.

In March 2018, the trial court granted in part and denied in part the defendant’s amended motion to vacate illegal sentence.

The trial court vacated defendant’s sentence for armed robbery (count I) and armed burglary (count II) so that he could be resentenced on those counts.

The trial court further determined that defendant’s sentence for second-degree murder (count III) did not require resentencing. Defendant then appealed the trial court’s order, claiming that his thirty-five year sentence for second-degree murder, even if not a de facto life sentence, was imposed without consideration of his diminished culpability as a juvenile, as he was seventeen-years-old at the time he committed the offenses, thus violating Miller v. Alabama, 567 U.S. 460 (2012). The State cross-appealed and argued that this Court should reverse the trial court’s order with respect to the armed robbery and armed burglary counts because the sentences did not violate Graham v. Florida, 560 U.S. 48 (2010).

After supplemental briefing following the Florida Supreme Court’s decision in Pedroza v. State, 291 So. 3d 541, 548 (Fla. 2020) (holding that “a juvenile offender’s sentence does not implicate Graham, and therefore Miller, unless it meets the threshold requirement of being a life sentence or the functional equivalent of a life sentence.”), defendant concedes that Pedroza controls the disposition of his claim and recognizes that affirmance is required.

Accordingly, we affirm the trial court’s order as to count 3 for second-degree murder. On the State’s cross-appeal, the defendant’s thirty-five year concurrent sentences for armed robbery (count 1) and armed burglary (count 2), do not violate the Eighth Amendment under Graham, and the trial court erred in concluding otherwise.

Accordingly, we reverse the trial court’s order granting the defendant’s post-conviction motion on counts 1 and 2, for armed robbery and armed burglary, respectively. We thus vacate the sentences regarding counts 1 and 2, and remand to the trial court to reinstate the sentences on those two counts.

We affirm the trial court’s order as to count 3.

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.