JULIO C. RODRIGUEZ-GIUDICELLI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2014-05-23
No. 2D12-5138
KELLY and WALLACE, JJ., Concur.
143 So. 3d 947 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 10 cases

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Holding

The court held that the trial court did not err in applying the doctrine of statutory revival to sentence a juvenile offender to life with parole eligibility after twenty-five years, consistent with the Supreme Court's ruling in Miller v. Alabama.


Headnotes

[1] The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.

[2] Statutory revival may be applied to reinstate prior sentencing provisions when subsequent judicial decisions create a hiatus in the law regarding penalties for offenses c…

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Facts & Procedural History

Rodriguez-Giudicelli, a juvenile, was convicted of first-degree premeditated murder. Following the Supreme Court's decision in Miller v. Alabama, whic…

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Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

Julio C. Rodriguez-Giudicelli appeals his judgment and sentence for first-degree premeditated murder. We affirm in all respects. We write to address Rodriguez-Giudieelli’s argument that the trial court reversibly erred when it applied the doctrine of statutory revival and sentenced *948him to life in prison with parole eligibility-after twenty-five years pursuant to section 775.082(1), Florida Statutes (1993).

Rodriguez-Giudicelli was seventeen years old when he shot Nolsen Careaga to death on April 12, 2010. Prior to the United States Supreme Court’s opinion in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the only sentence a trial court in Florida could impose for premeditated murder committed by a juvenile was life in prison without the possibility of parole. See Washington v. State, 103 So.3d 917, 918 (Fla. 1st DCA 2012) (observing that the only two sentences available under the 2009 version of section 775.082(1) for capital felonies were death or mandatory life without the possibility of parole, and that Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), had invalidated the death penalty for defendants who were juveniles at the time the offense was committed). But Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. Consequently, in the wake of the Miller decision, Florida courts have struggled with the difficult task of determining what sentence to impose when all reasonable options have been legislatively or judicially foreclosed.

In a concurring opinion in Partlow v. State, 134 So.3d 1027 (Fla. 1st DCA 2013), Judge Makar provides a well-reasoned resolution to this conflict. Applying the concept of statutory revival discussed in B.H. v. State, 645 So.2d 987 (Fla.1994), Judge Makar “would hold that the operative sentencing language of the 1993 version of section 775.082(1) is revived and juvenile offenders should be [jsentenced to life with the possibility of parole after 25 years.” 134 So.3d at 1032. Acknowledging that the Florida Legislature has since repealed the language authorizing this sentence — thereby demonstrating a legislative intent that it no longer be imposed — Judge Makar observes that statutory revival is nevertheless appropriate under these circumstances because the alternative would “‘result in a “hiatus” in the law that would be intolerable to society’ ... due to the lack of a penalty for the commission of first-degree murder by a juvenile.” Id. at 1033 (quoting B.H., 645 So.2d at 995). Moreover, a sentence of life with the possibility of parole after twenty-five years would be consistent with Miller, which, “[fjairly read, ... does not require individualized sentencing of juveniles for anything other than sentences of life without parole.” Id. at 1037.

Judge Makar’s analysis has gained traction in other Florida Appellate courts. In Horsley v. State, 121 So.3d 1130,1131 (Fla. 5th DCA 2013), review granted, 2013 WL 6224657 (Fla. Nov. 14, 2013), the Fifth District “fully agree[d]” with Judge Makar’s analysis in Partlow and unambiguously held “that the only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years.” Additionally, in an opinion concurring in part and dissenting in part in Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014), the same analysis was applied to conclude that a juvenile convicted of felony murder should be sentenced under the 1993 version of section 775.082(1).

Consequently, we hold that the trial court did not err when it applied the doctrine of statutory revival to sentence Rodriguez-Giudicelli pursuant to the 1993 version of section 775.082(1) for a premeditated murder committed when he was a minor. As the Fifth District did in Horsley, we certify the following question to the Florida Supreme Court as a matter of great public importance:

*949WHETHER THE SUPREME COURT’S DECISION IN MILLER V. ALABAMA, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), WHICH INVALIDATED SECTION 775.082(1)’S MANDATORY IMPOSITION OF LIFE WITHOUT PAROLE SENTENCES FOR JUVENILES CONVICTED OF FIRST-DEGREE MURDER, OPERATES TO REVIVE THE PRIOR SENTENCE OF LIFE WITH PAROLE ELIGIBILITY AFTER 25 YEARS PREVIOUSLY CONTAINED IN THAT STATUTE?

Horsley, 121 So.3d at 1132-33.

Affirmed; question certified.

KELLY and WALLACE, JJ., Concur.


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Citator

Cited By

  • Horsley v. State, 160 So. 3d 393 (Fla. 2015)
    …urder committed by a juvenile is life with the possibility of parole after twenty-five years.” Horsley, 121 So. 3d at 1131. In addition, other courts and judges have cited favorably to the statutory revival option. See Rodriguez-Giudicelli v. State, 143 So. 3d 947, 948 (Fla. 2d DCA 2014) (holding that “the trial court did not err when it applied the doctrine of statutory revival to sentence Rodriguez-Giudicelli pursuant to the 1993 version of section 775.082(1) for a premeditated murder committed when he was…
  • Janard Orange v. State, 149 So. 3d 74 (Fla. 4th DCA 2014)
    …role after twenty-five years. Two of our sister courts have accepted the State’s position. See Horsley v. State, 121 So. 3d 1130 (Fla. 5th DCA 2013), review granted, No. SC13-1938, 2013 WL 6224657 (Fla. Nov. 14, 2013); RodriguezGiudicelli v. State, 143 So. 3d 947 (Fla. 2d DCA 2014). However, this court has consistently followed Miller to direct a trial [*83] court, on remand, “to conduct further sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ refere…
  • Davone Lamar Royster v. State, 148 So. 3d 147 (Fla. 2d DCA 2014)
    …t of acquittal. We affirm that issue without further comment. We also affirm on the second issue, regarding the legality of his life sentence with the possibility of parole, which is controlled by our recent opinion in Rodriguez-Giudicelli v. State, 143 So. 3d 947 (Fla. 2d DCA 2014). Affirmed. DAVIS, C.J., and KHOUZAM, J., Concur.…

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