EDEMA ABRAKATA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edema Abrakata, convicted at age 17 of attempted second-degree murder and sentenced to 25 years with a mandatory minimum, appeals on three grounds: sentencing review eligibility, whether the mandatory minimum violates Graham v. Florida, and imposition of costs. The court affirmed the Graham challenge and sentencing review denial, but reversed the imposition of certain costs not orally pronounced.
The court affirmed that the 25-year mandatory minimum does not violate Graham because appellant will be in his early forties upon release, not subjected to de facto life without parole. The court affirmed that section 921.1402 cannot be retroactively applied absent a Graham violation. The court reversed the imposition of the $195.24 fine and $9.76 surcharge because they were not orally pronounced at sentencing, though the trial court may reimpose them following proper procedure.
[1] A mandatory minimum sentence imposed on a juvenile offender does not violate Graham v. …
[2] Statutory provisions for juvenile sentencing review enacted after an offense was committed cannot be retroactively applied to that offense absent a violation of Graham v. …
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Join FLexlaw to unlock all legal intelligence“the sentence does not amount to a de facto life without parole sentence since Appellant will be in his early forties when he is released from prison”
Establishes the court's test for Graham compliance: juvenile sentences do not violate Graham if the offender will not face de facto life without parole, measured by whether release occurs before late adulthood.
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Join FLexlaw to unlock all legal intelligenceAppellant, age 17 at the time, committed the offense of attempted second-degree murder in 2011. He was convicted and sentenced to 25 years in prison w…
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Appellant was convicted of attempted second-degree murder and sentenced to 25 years in prison, with a 25-year mandatory minimum term, followed by five years of probation.1 Appellant committed this offense in 2011 when he was 17 years old.
Appellant raises three issues in this direct appeal. First, he contends that his judgment and sentence should be amended to reflect that he is entitled to a review of his sentence after 15 years under section 921.1402(2)(c), Florida Statutes (2014). Second, he contends that the 25-year mandatory minimum term should be vacated because it violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Third, he contends that the trial court erred in imposing several costs.
We affirm the second issue2 because even though the mandatory mini*252mum term will require Appellant to serve his 25-year sentence day-for-day,. the sentence does not amount to a de facto life without parole sentence since Appellant will be in his early forties when he is released from prison. See Lambert v. State, 170 So.3d 74, 2015 WL 3541914, 40 Fla. L. Weekly D1347 (Fla. 1st DCA June 8, 2015) (on motion for clarification) (rejecting argument that juvenile’s 15-year sentence violates Graham because he will be in his late twenties or early thirties when he is released from prison); Austin v. State, 127 So.3d 1286 (Fla. 1st DCA 2013) (affirming juvenile’s 45-year mandatory minimum term because it did not exceed his life expectancy); Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011) (affirming juvenile’s 50-year sentence with a 25-year mandatory minimum term because the sentence does not amount to a life without parole sentence even though the juvenile will be in his late sixties when he is released from prison).
We affirm the first issue because, absent a violation of Graham, there is no legal basis to retroactively apply section 921.1402 (or any other provision of the juvenile sentencing legislation enacted in 2014) to the 2011 offense in this case. Cf. Henry v. State, — So.3d -, 2015 WL 1239696, 40 Fla. L. Weekly S147 (Fla. Mar. 19, 2015) (remanding for resentenc-ing in light of the juvenile sentencing legislation adopted in 2014 because the court determined that the 90-year sentence in that case “is unconstitutional under Graham ”).
With respect to the third issue, we accept the State’s confession of error and reverse the imposition of the $195.24 fine and $9.76 surcharge imposed pursuant to sections 775.083(1) and 938.04, Florida Statutes (2010), because those amounts were not orally pronounced by the trial court at the sentencing hearing.3 See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). On remand, the trial court may reimpose the fine and surcharge after following the proper procedure. Id.
AFFIRMED in part; REVERSED and REMANDED in part.
WOLF, WETHERELL, and BILBREY, JJ., concur.
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Citator
Cited By (13 total)
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Kelsey v. State, 206 So.3d 5 (Fla. 2016)…irst District opined that it was precluded from providing Kelsey the same relief afforded to Henry because Kelsey’s forty-five-year prison term did not constitute a de facto life sentence in violation of Graham. Id. at 441 (citing Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015); Lambert v. State, 170 So. 3d 74, 76 (Fla. 1st DCA 2015)). Specifically, the First District stated, “Because the concurrent resentences at issue in this case do not violate Graham, we are constrained to deny relief.” Id. Af…
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Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015)…. 3d 393 (Fla.2015). Kelsey requests the same relief afforded to Henry, but we may do so only if his forty-five year prison term is a defacto life sentence in violation of Graham, which it is not under our Court’s precedents. See Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015) (“absent a violation of Graham, there is no legal basis to retroactively apply section 921.1402 (or any other provision of the'juvenile sentencing legislation enacted in 2014) to the 2011 offense in this case.”); Lambert v.…1 / 2
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Darrius Montgomery v. State, 230 So. 3d 1256 (Fla. 5th DCA 2017)…h Amendment and that he is not entitled to be sentenced under the provisions of Chapter 2014-220. . In denying Montgomery's rule 3.800(b)(2) motions, the trial court did not rely on our decision in Peterson, and instead relied on Abrakata v. State, 168 So. 3d 251, 252 (Fla. 1st DCA 2015), where the First District Court of Appeal concluded that the defendant’s twenty-five-year mandatory minimum sentence did not violate Graham. .In reaching this conclusion, the First District relied, on cases that held that fo…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Graham v. Florida (1st Cir. 2010)
- NIX v. State, 84 So. 3d 424 (Fla. 1st DCA 2012)
- Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011)
- Lambert v. State, 170 So. 3d 74 (Fla. 1st DCA 2015)
- Austin v. State, 127 So. 3d 1286 (Fla. 1st DCA 2013)
- Jackson v. State, 127 So. 3d 1286 (Fla. 1st DCA 2013)