DERYCK LEE KATWAROO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
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Deryck Lee Katwaroo appeals the trial court's order on his motion for sentence modification as a juvenile offender. The court reversed and remanded, finding the trial court erroneously amended the sentence to provide for a review hearing without first conducting a resentencing hearing.
The trial court correctly denied the rule 3.802 motion as premature, but erred in amending the sentence to provide for a review hearing without first conducting a resentencing hearing. The case must be reversed and remanded for the trial court to treat the motion as a rule 3.800(a) motion and conduct a resentencing hearing.
[1] A motion filed pursuant to rule 3.802 of the Florida Rules of Criminal Procedure is premature if it is filed before a juvenile offender has been resentenced and the time…
[2] A trial court errs in amending a defendant's sentence to provide for a review hearing without first conducting a resentencing hearing.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Procedurally, the defendant sought relief under the wrong rule because rule 3.802 applies only after a juvenile has been resentenced pursuant to section 921.1402, Florida Statutes, and the time for a review hearing has arrived.”
Establishes that the rule 3.802 motion was procedurally premature and required prior resentencing.
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Join FLexlaw to unlock all legal intelligenceIn 1999, Katwaroo pleaded guilty to second-degree murder and received a 30-year sentence, which was affirmed on direct appeal. Katwaroo later filed a …
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Deryck Lee Katwaroo (the defendant) appeals the trial court's order granting in *447part and denying in part his "motion to review the sentence imposed on a juvenile offender for possible modification or reduction of sentence," filed pursuant to rule 3.802 of the Florida Rules of Criminal Procedure. The trial court correctly denied the motion as it was premature; however, the trial court erred in amending the defendant's sentence to provide for a review hearing without first conducting a resentencing hearing. Therefore, we reverse and remand for the trial court to treat the motion as a rule 3.800(a) motion and set this matter for resentencing.
In 1999, the defendant pled guilty to the offense of second-degree murder. We affirmed his judgment and 30-year sentence. Katwaroo v. State, 756 So.2d 254 (Fla. 5th DCA 2000).
The defendant filed this rule 3.802 motion alleging that his sentence is illegal because, according to him, he was sixteen at the time he committed the offense. See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ; Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; Kelsey v. State, 206 So.3d 5 (Fla. 2016) ; Atwell v. State, 197 So.3d 1040 (Fla 2016). Procedurally, the defendant sought relief under the wrong rule because rule 3.802 applies only after a juvenile has been resentenced pursuant to section 921.1402, Florida Statutes, and the time for a review hearing has arrived.
Nevertheless, in light of his 30-year sentence, the defendant was entitled to receive judicial review of his sentence. See Burrows v. State, 219 So.3d 910 (Fla. 5th DCA 2017), but see Davis v. State, 214 So.3d 799 (Fla. 1st DCA 2017). However, it was error for the trial court to amend the sentence to provide for a review hearing without first conducting a resentencing hearing. Davis v. State, 230 So.3d 487 (Fla. 5th DCA 2017).
Accordingly, we reverse and remand for the trial court to treat the instant motion as a rule 3.800(a) motion and to hold a resentencing hearing pursuant to section 921.1402, Florida Statutes.
REVERSED and REMANDED.
EVANDER, J. concurs
BERGER, J. concurring specially
BERGER, J., concurring specially.
I concur based on this court's decision in Davis v. State, 230 So.3d 487, 488 (Fla. 5th DCA 2017). However, were I writing on a clean slate, I would affirm. In my view, Katwaroo is not entitled to resentencing under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) or Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because his thirty-year sentence is not a de facto life sentence. See Davis v. State, 214 So.3d 799, 799-800 (Fla. 1st DCA 2017).
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Citator
Cited By (17 total)
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Pedroza v. State, 244 So. 3d 1128 (Fla. 4th DCA 2018)
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Kadeem Quaishawn Hart v. State, 255 So. 3d 921 (Fla. 1st DCA 2018)
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Wagner v. State (Fla. 1st DCA 2019)…de facto life sentence. Davis v. State, 214 So. 3d 799 (Fla. 1st DCA 2017) (defendant sentenced to total of 35 years for second-degree murder and attempted robbery committed as a juvenile is not required to be resentenced); contra Katwaroo v. State, 237 So. 3d 446, 447 (Fla. 5th DCA 2018) (resentencing required for defendant serving 30-year sentence for second-degree murder committed as a juvenile); see also Pedroza v. State, No. SC18-964, 2018 WL 6433136 (Fla. Dec 6, 2018), accepting review of Pedroza v. S…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012)
- Graham v. Florida (1st Cir. 2010)
- Atwell v. State, 197 So. 3d 1040 (Fla. 2016)
- Kelsey v. State, 206 So.3d 5 (Fla. 2016)
- Jessy J. Burrows v. State, 219 So. 3d 910 (Fla. 5th DCA 2017)
- Damien Davis v. State, 214 So. 3d 799 (Fla. 1st DCA 2017)
- Davis v. State, 230 So. 3d 487 (Fla. 5th DCA 2017)
- Deryck Katwaroo v. State, 756 So. 2d 254 (Fla. 5th DCA 2000)
- Finlayson v. State, 756 So. 2d 254 (Fla. 5th DCA 2000)