ROBERT D. GARNER

v.

STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ROBERT D. GARNER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D22-866

September 15, 2023

Appeal from the Circuit Court for Pasco County; Kimberly Campbell, Judge. Andrea M. Norgard of Norgard, Norgard & Chastang, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lydon W. Schultz, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge.

Robert Garner challenges the trial court's order resentencing him to two consecutive life sentences, each with the possibility of parole after twenty-five years, after a jury found him guilty of committing two murders in 1994. Mr. Garner argues that his consecutive life sentences are unconstitutional where he committed the offenses in one criminal episode when he was a juvenile. Because Mr. Garner is entitled to the possibility of parole after twenty-five years for each of the two homicide offenses, he has been granted a "meaningful opportunity" to be considered for release during his natural life, and thus his sentences do not violate the Eighth Amendment. We affirm.1

I

On March³, 1994, a jury found Mr. Garner guilty of two counts of first-degree murder. The charges arose from a single criminal episode in which Mr. Garner and two others, one aged nineteen and one a juvenile, participated in the brutal killing of two elderly victims who were neighbors of Mr. Garner and personally known to him. After his conviction, the trial court sentenced Mr. Garner to two consecutive life sentences, each with a possibility of parole after twentyfive years. Mr. Garner, who was nineteen years old at the time of sentencing, would have been eligible for parole at age forty-four. Mr. Garner appealed those sentences, which this court affirmed on October 9, 1996, in Garner v. State, 683 So. 2d 121 (Fla. 2d DCA 1996). Mr. Garner's subsequent postconviction motions were unsuccessful and were denied by the postconviction court.

On June 24, 2016, Mr. Garner filed a Motion for Postconviction Relief 3.850(a), (1), (b) (2) [sic] Alternatively, Motion to Correct Illegal Sentence 3.800(a), arguing that his two consecutive life sentences with the possibility of review after twenty-five years constituted a de facto life sentence and were thus impermissible for a juvenile under Miller v. Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016), abrogated by State v. Michel, 257 So. 3d 3, 6 (Fla. 2018). 1 We also find no merit in the remaining arguments briefed by Mr. Garner. The State conceded that under Miller and its progeny, Mr. Garner was entitled to resentencing pursuant to section 775.082(1)(b)², Florida Statutes (2016). The court granted Mr. Garner's motion for postconviction relief. But on August 24, 2018, the State filed a Motion to Reconsider Defendant's Motion for Post-Conviction Relief, arguing that because the Florida Supreme Court in Michel, 257 So. 3d at 6-7, had recently overturned Atwell and held that parole-eligible juvenile defendants are not entitled to resentencing because their sentences are constitutional, Mr. Garner's sentences were permissible. On December 20, 2018, the postconviction court issued an order granting the State's motion to reconsider, vacating its previous order, and denying Mr. Garner's postconviction motion. The court agreed with the State that after Michel overturned Atwell, Mr. Garner's parole-eligible life sentences were indeed constitutional.

Mr. Garner appealed the December 20, 2018, order to this court. Garner v. State, 310 So. 3d 484 (Fla. 2d DCA 2020). We reversed the order and remanded for resentencing, holding that the postconviction court lacked jurisdiction to vacate its previous order based on the State's untimely rehearing motion; we noted, however, that upon remand, the decisional law at the time of resentencing would apply and that "Mr. Garner may still receive the same sentence upon resentencing." Id. at 485.

At resentencing, Mr. Garner presented testimony from a number of witnesses including family members and friends, as well as a psychologist who discussed the effects of trauma on a juvenile brain. On March⁴, 2022, the court resentenced Mr. Garner to consecutive life sentences, each with the possibility of parole after twenty-five years. This timely appeal followed.

II

In this appeal, Mr. Garner argues that his consecutive life sentences for the two homicides, even with the possibility of parole after twenty-five years, are unconstitutional under our decision in Mack v. State, 313 So. 3d 694, 698 (Fla. 2d DCA 2020) (holding that the sexual battery consecutive life sentence, which ran concurrent with the life sentences for first-degree murder and burglary, violated the Eighth Amendment). We review de novo the constitutionality of a sentence. Williams v. State, 313 So. 3d 788, 790-91 (Fla. 2d DCA 2021) (reviewing juvenile life sentence with the possibility of parole and determining that sentence "is not illegal under the law as it now stands"). However, before we address Mack, a brief discussion of the evolving case law is required.

The United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 568 (2005), held that a juvenile receiving a death penalty sentence for any crime violates the Eighth Amendment. In Graham v. Florida, 560 U.S. 48, 75 (2010), the Supreme Court would later address Eighth Amendment implications in the context of juvenile nonhomicide offenders receiving life sentences without parole. Graham was sentenced to life in prison without the possibility of parole for an armed burglary committed when he was sixteen. Id. at 53-54. The Supreme Court held that the Eighth Amendment categorically forbids a sentence of life without parole for a juvenile nonhomicide offender. Id. at 82. And while states are "not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," they must "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" before the end of the sentence and during the offender's natural life. Id. at 75. In considering a sentence of life without parole for juvenile nonhomicide offenders, Graham held that "[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense." Id. at 71. Importantly, Graham drew a marked distinction between nonhomicide offenses and homicide offenses: There is a line "between homicide and other serious violent offenses against the individual." Kennedy [v. Louisiana, 554 U.S. 407, 438 (2008)]. Serious nonhomicide crimes "may be devastating in their harm . . . but 'in terms of moral depravity and of the injury to the person and to the public,' . . . they cannot be compared to murder in their 'severity and irrevocability.' " Id. (quoting Coker [v. Georgia, 433 U.S. 584, 598 (1977)] (plurality opinion)). This is because "[l]ife is over for the victim of the murderer," but for the victim of even a very serious nonhomicide crime, "life . . . is not over and normally is not beyond repair." [Id.] (plurality opinion). Although an offense like robbery or rape is "a serious crime deserving serious punishment," Enmund [v. Florida, 458 U.S. 782, 797 (1982)], those crimes differ from homicide crimes in a moral sense. Id. at 69.

Two years later, the Supreme Court would decide Miller, 567 U.S. at 479, focusing in on homicide offenses committed by juveniles. Miller filed a habeas petition arguing a violation of his Eighth Amendment rights after he was convicted of murder and received a mandatory life sentence without the possibility of parole for the murder of a store clerk during a robbery. Id. at 466-67. Building upon its reasoning in Graham, the Supreme Court held that a sentencing scheme that mandates a juvenile sentence of life without the possibility of parole for all juveniles convicted of homicide violates the Eighth Amendment. Id. at 479. Miller reasoned that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles," such as age, age-related characteristics, and the nature of the crimes, because to do otherwise "violate[s] th[e] principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment." Id. at 489. Again recognizing the differences between homicide and nonhomicide offenses, it declined to categorically bar such a penalty, as it had done in Graham. Id. at 479. Instead, it held that a mandatory sentencing scheme where juvenile homicide offenders receive "lifetime incarceration without the possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes," violates the Eighth Amendment's ban on cruel and unusual punishment. Id. at 489; see also Montgomery v. Louisiana, 577 US. 190, 212 (2016) ("A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.").

In response to Graham and Miller, the Florida Legislature adopted chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. Mack, 313 So. 3d at 695. The Florida Supreme Court in Henry v. State, 175 So. 3d 675, 676 (Fla. 2015), discussed the implications of Graham and Miller where a juvenile was convicted of multiple nonhomicide offenses and received an aggregate sentence of ninety years in prison. Henry held that "the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonhomicide offender's sentence does not afford any 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " Id. at 679 (emphasis added) (quoting Graham, 560 U.S. at 75). Because Henry would be imprisoned until he was at least ninety-five years old, the Florida Supreme Court held that his aggregate sentence for his nonhomicide offenses afforded him no meaningful opportunity for release and was therefore unconstitutional under Graham. Id. at 679-80; cf. Michel, 257 So. 3d at 4 (holding that a juvenile sentenced to concurrent life sentences with the possibility of parole after twenty-five years for first-degree premeditated murder and armed robbery was not entitled to resentencing because such sentence does not violate the Eighth Amendment); Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018) (holding that "Florida's statutory parole process fulfills Graham's requirement that juveniles be given a 'meaningful opportunity' to be considered for release during their natural life" and receding from its decision in Atwell, wherein the court had earlier held that a juvenile homicide offender's sentence of life with parole sentence violated the Eighth Amendment where the release date was well beyond the juvenile's life expectancy).

III

We now turn to our decision in Mack. Mr. Mack, a juvenile, was convicted of homicide and nonhomicide crimes and sentenced to concurrent life sentences for murder and burglary, which entitled him to a sentencing review after twenty-five years under sections 921.1402(2)(a) and 775.082(1)(b), Florida Statutes (2018), and to a consecutive life sentence for sexual battery, which entitled Mr. Mack to a sentencing review after twenty years under sections 775.082(3)(c) and 921.1405(2)(d). Mack, 313 So. 2d at 695. The issue before us in Mack was the "absence of any penological purpose to be served by [Mr.] Mack's consecutive life sentence for sexual battery and that sentence's nullification of [Mr.] Mack's meaningful opportunity to obtain release from incarceration under his murder and burglary sentences" under Graham and Miller. Id. at 698. In reversing the consecutive life sentences as unconstitutional, we held that the opportunity for release for the first life sentence after twenty-five years was not "meaningful" as required by Miller because Mr. Mack would still be required to serve an additional twenty years for the consecutive life sentence for the sexual battery before the next review. Id. at 696. In so holding, we reasoned that the consecutive life sentence for sexual battery, arising from the same criminal episode, served no "penological purpose" and that "[a]s a practical matter, its only effect [was] to eliminate any meaningful opportunity for him to gain release from incarceration under the murder and burglary sentences." Id. (emphasis added). The State argues an obvious distinction between Mack and the instant case—here Mr. Garner was convicted of multiple homicide offenses with each consecutive sentence carrying a life sentence with the possibility of parole after twenty-five years. Conversely, the issue in Mack focused on the penological purpose of a consecutive life sentence for the nonhomicide offense.

IV

The issue before us is one of first impression for our court.² However, our sister court in the Fourth District addressed similar facts and upheld as constitutional consecutive life sentences with the possibility of parole after twenty-five years where the juvenile committed multiple homicides in a single episode. Hegwood v. State, 308 So. 3d 647, 648 (Fla. 4th DCA 2020). In Hegwood, the juvenile was sentenced to life in prison with a twenty-five-year mandatory minimum for three

V

Trial courts have broad discretion when sentencing a defendant within the statutory limits. Apprendi v. New Jersey, 530 U.S. 466, 481 (2000); see also Hoskins v. State, 965 So. 2d 1, 18 (Fla. 2007) ("Trial courts are in the best position to observe the unique circumstances of a case and have broad discretion in assigning weight to mitigators."). And within those statutory limits, homicide offenses may carry harsher sentences than nonhomicide cases. Kennedy, 554 U.S. at 438 (citing Enmund, 458 U.S. at 797) (noting that harsher sentences for homicide offenses were justified due to "the fundamental, moral distinction between" homicide and other offenses). A juvenile life sentence with the possibility of parole "is not illegal under the law as it now stands." Williams, 313 So. 3d at 790-91. The United States Supreme Court and the Florida Supreme Court have historically treated nonhomicide cases differently than homicide cases. See Graham, 560 U.S. at 69; Miller, 567 U.S. at 473; Henry, 175 So. 3d at 678. Here, Mr. Garner has not provided any legal authority supporting a departure from this long line of authority. Therefore, until such time that the United States Supreme Court or the Florida Supreme Court holds, or the Legislature enacts law, that precludes the imposition of consecutive life sentences—even with the possibility of parole or judicial review after twenty-five years for each sentence—for juvenile homicide offenders who commit multiple murders, we are bound to follow Graham, Miller, Michel, and Franklin. Accordingly, because the consecutive life sentence, here, with the possibility of parole after twenty-five years, was for the second homicide, that sentence served a "penological purpose" and did not violate the

Eighth Amendment.³

Affirmed.

LABRIT, J., Concurs. SILBERMAN, J., Concurs specially with an opinion in which LABRIT, J., concurs.