SHAWN MICHAEL MCDUFFEY, JR.

v.

STATE OF FLORIDA

WINOKUR, J.

After a jury convicted Shawn Michael McDuffey, Jr. of kidnapping and robbery, the trial court sentenced him to life in prison as a prison releasee reoffender (PRR). On appeal, McDuffey argues that his mandatory life sentence is illegal pursuant to Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, 567 U.S. 460 (2012), because prior offenses that qualified him as a PRR occurred when he was a juvenile. We affirm McDuffey’s sentence and hold that a trial court can consider a prior juvenile offense, where the defendant was adjudicated as an adult, in determining whether a defendant qualifies for a mandatory life sentence under the PRR statute.

I.

McDuffey was an adult when he committed the charged crimes of kidnapping and robbery. Prior to trial, the State filed notice of its intent to classify McDuffey as a PRR and to pursue the corresponding sentences. At sentencing, the State introduced certified copies of McDuffey’s qualifying prior offenses: twelve felony convictions for a series of burglaries and thefts McDuffey committed when he was sixteen years old and for which he was sentenced as an adult. As a result, the trial court sentenced McDuffey pursuant to the PRR statute and imposed the statutorily-mandated sentences of life in prison for kidnapping and fifteen years in prison for robbery.

II.

The legality of a sentence is reviewed de novo.¹ State, 199 So. 3d 1110, 1111 (Fla. 1st DCA 2016). Similarly, review of a constitutional question is de novo. Henry v. State, 134 So. 3d 938, 944-47 (Fla. 2014).

The Eighth Amendment to the United States Constitution, as well as Article I, section 17 of the Florida Constitution, proscribes cruel and unusual punishment. In Graham, the United States Supreme Court held that sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense constituted cruel and unusual punishment. 560 U.S. at 48. The court also found that the imposition of a mandatory life sentence without the possibility of parole for juvenile offenders violates the Eighth Amendment. Miller, 567 U.S. at 460.

The PRR statute provides for enhanced penalties for defendants who commit certain offenses within three years of release from a state correctional facility. § 775.082(9), Fla. Stat. If the defendant commits a felony punishable by life imprisonment, the trial court must impose a mandatory sentence of life in prison. § 775.082(9)(a)3.a., Fla. Stat. If the defendant commits a second-degree felony, the trial court must impose a sentence of fifteen years in prison. § 775.082(9)(a)3.c., Fla. Stat. Defendants sentenced pursuant to the PRR statute have no possibility of parole or early release and must serve 100 percent of their sentence. § 775.082(9)(b), Fla. Stat. A trial court has no discretion in the imposition of a PRR sentence. § 775.082(9)(a)3., Fla. Stat.¹ We reject the State’s argument that McDuffey did not preserve this issue for appeal.

Both kidnapping and robbery qualify for PRR sentencing. § 775.082(9)(a), Fla. Stat. Kidnapping is a first-degree felony punishable by up to life in prison. § 787.01(2), Fla. Stat. Robbery is a second-degree felony. § 812.13(2)(c), Fla. Stat. Additionally, McDuffey was released from prison less than three years before he was convicted of kidnapping and robbery.

While McDuffey therefore qualifies for a mandatory life sentence under the PRR statute, he claims that imposition of a life sentence violates either Graham or Miller when the prior offense considered by the trial court occurred when the defendant was a juvenile.²

III.

We note that numerous federal³ and state4 courts have rejected the claim that using prior juvenile offenses, to qualify

adult offenders for mandatory life sentences under recidivist sentencing statutes, violate Graham or Miller. We agree.⁵

McDuffey was twenty-one years old when he committed the kidnapping and robbery that resulted in his mandatory life sentence. Yet, McDuffey argues that both Graham and Miller apply because the brain science underpinning those cases demonstrate that the judgment centers of the brain are not fully developed until the age of twenty-five. This is precisely the argument that this Court rejected in Romero v. State, 105 So. 3d 550 (Fla. 1st DCA 2012), where we found that Graham and Miller do not apply to adult offenders.6

More importantly, McDuffey’s position fundamentally misapprehends the function of recidivist sentencing statutes. By claiming that the use of a juvenile adjudication as a predicate offense under the PRR statute violates the Eighth Amendment because juveniles are less morally culpable, McDuffey presumes that he is being punished for conduct he committed as a juvenile. In fact, McDuffey’s sentence is solely punishment for his acts of committing kidnapping and robbery. See United States v. Rodriquez, 553 U.S. 377, 386 (2008) (finding that “[w]hen a defendant is given a higher sentence under a recidivism statute

. . . 100% of the punishment is for the offense of conviction”) (emphasis added).

Lastly, Graham and Miller are rooted in the understanding that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . .” Miller, 567 U.S. at 471. As a result, mandatory sentencing schemes do not allow a trial court to differentiate “between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Graham, 560 U.S. at 73 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).

In this case, McDuffey’s life sentence was a result of crimes he committed when he was an adult. The fact that his juvenile priors qualified McDuffey for a mandatory life sentence is irrelevant. Graham and Miller did not prohibit “consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood.” Hoffman, 710 F. 3d at 1233 (quoting United States v. Wilks, 464 F. 3d 1240, 1243 (11th Cir. 2006)). Therefore, the use of juvenile offenses as qualifying priors under the PRR statute does not violate Graham or Miller.⁷

IV.

Less than three years after being released from prison, McDuffey reoffended and was sentenced to life in prison under the PRR statute. McDuffey’s criminal history demonstrates persistent criminality rather than the incorrigibility inherent in youth. We, therefore, affirm McDuffey’s judgment and sentence and hold that the consideration of a juvenile offense, which resulted in an adult conviction, to qualify a defendant for a mandatory life sentence

under the PRR statute does not constitute cruel and unusual punishment.

AFFIRMED. M.K. THOMAS, J., concurs; MAKAR, J., concurs in result with opinion. _____________________________