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Date: 01-10-2019

Case Style:

STATE OF FLORIDA vs GERALD WEST

Case Number: 16-4252

Judge: PER CURIAM

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Plaintiff's Attorney: Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General

Defendant's Attorney: Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender

Description:





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.

Outcome: Reversed

Plaintiff's Experts:

Defendant's Experts:

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