STATE OF FLORIDA
v.
GERALD WEST
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A defendant whose sentence does not preclude parole eligibility is not entitled to resentencing under section 921.1402, Florida Statutes, because such a sentence is not unconstitutional under Miller v. Alabama or Graham v. Florida.
[1] When a defendant is eligible for parole, the sentence is not unconstitutional under Miller v. …
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Join FLexlaw to unlock all legal intelligenceGerald West was sentenced in a criminal matter and filed a motion to correct an illegal sentence under Florida Rule 3.800. The trial court granted the…
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PER CURIAM.
The State appeals an order granting the defendant’s motion to correct an illegal sentence. We reverse. Because the defendant is eligible for parole, his sentence is not unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), or Graham v. Florida, 560 U.S. 48 (2010). Franklin v. State, 43 Fla. L. Weekly S556 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.
In State v. Michel, 43 Fla. L. Weekly S298 (Fla. July 12, 2018), and Franklin, the Florida Supreme Court receded from Atwell v. State, 197 So. 3d 1040 (Fla. 2016). The defendant argues Michel does not create binding precedent because only three justices joined in Justice Polston’s opinion and Justice Lewis concurred only in the result. However, four justices joined the majority in Franklin, which recognized that Atwell is no longer good law and “improperly applied Graham and Miller.” Franklin, 43 Fla. L. Weekly at S556.
Reversed.
TAYLOR, DAMOORGIAN and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelms v. State, 263 So. 3d 88 (Fla. 4th DCA 2019)
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Perry v. State, 263 So. 3d 86 (Fla. 4th DCA 2019)
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Zamot v. State, 262 So. 3d 260 (Fla. 3d DCA 2019)
Previewing 3 of 7 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)
- State v. Budry Michel, 257 So. 3d 3 (Fla. 2018)
- Franklin v. State, 258 So. 3d 1239 (Fla. 2018)
- Stokes v. State, 271 So. 3d 1000 (Fla. 4th DCA 2019)