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Date: 11-13-2017

Case Style:


Case Number: 5D14-3615

Judge: Richard B. Orfinger


Plaintiff's Attorney: Rebecca Rock McGuigan
Assistant Attorney General

Defendant's Attorney: James S. Purdy
Public Defender
Susan A. Fagan
Assistant Public Defender

Description: Darrius Montgomery, seventeen years old at the time he committed his offenses,
was convicted of attempted robbery with a firearm, aggravated assault with a firearm,
aggravated battery with a firearm, and attempted felony murder with a firearm. On each
count, the jury found that he discharged a firearm resulting in great bodily harm but not
death. Montgomery was later sentenced to twenty-five years’ imprisonment with twenty
five-year mandatory minimum terms for the attempted robbery and aggravated battery
offenses, twenty years’ imprisonment with a twenty-year mandatory minimum term for the
aggravated assault, and thirty years’ imprisonment with a twenty-five-year mandatory
minimum term for the attempted felony murder. All sentences were imposed pursuant to
the 2012 version of the 10-20-Life statute, section 775.087(2), Florida Statutes, and
ordered to be served concurrently.
While his appeal was pending, Montgomery filed a timely motion to correct
sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that he is a
juvenile offender and entitled to a juvenile sentencing hearing and judicial review hearing
in accordance with the procedures outlined in chapter 2014–220, Laws of Florida, codified
in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014), for the attempted
robbery, aggravated battery, and attempted felony murder convictions. The trial court
agreed in part, and ordered a new sentencing hearing for those three convictions. After
the hearing, the State submitted a memorandum of law, conceding that Montgomery was
entitled to a review of his sentence after twenty years pursuant to section 921.1402(2)(d).1
The trial court then entered an order granting review of Montgomery’s sentences after
twenty years but did not issue amended sentencing orders. Montgomery filed a second
rule 3.800(b)(2) motion, asking the court to vacate his sentences for those three
convictions and to hold a juvenile sentencing hearing under section 775.082(3)(c), and
make the necessary findings in accordance with sections 921.1401 and 921.1402 that he
is a juvenile offender and entitled to a sentencing review hearing after twenty years.
1 On appeal, without explanation, the State reverses course and broadly argues that Montgomery’s sentence does not violate the Eighth Amendment and that he is not entitled to be sentenced under the provisions of Chapter 2014-220.
Montgomery also asked the court to vacate the mandatory minimum sentences imposed
under section 775.087(2) on all four of his convictions, arguing that, as to juveniles, the
2014 juvenile sentencing statutes supersede the mandatory minimum sentences required
by section 775.087(2). The trial court disagreed, rescinded its earlier order, and held that
Montgomery was not entitled to a review hearing after serving twenty years.
On appeal, Montgomery argues that he is entitled to resentencing as his sentences
violate the Eighth Amendment to the United States Constitution and that the 10-20-Life
statute no longer applies to juvenile offenders tried and convicted as adults. We agree in
part and reverse. The legality of a sentence is a question of law, and thus, subject to de
novo review. Pinkard v. State, 185 So. 3d 1289, 1289-90 (Fla. 5th DCA 2016). Similarly,
our review of the constitutionality of a sentence is de novo. Peterson v. State, 193 So.
3d 1034, 1038 (Fla. 5th DCA 2016).
The unsettled state of juvenile sentencing for nonhomicide offenders began with
Graham v. Florida, 560 U.S. 48 (2010), when the Supreme Court held that the United
States Constitution prohibits the imposition of a life without parole sentence on a juvenile
offender who did not commit a homicide. The Court explained that a state is not required
to guarantee the juvenile offender eventual release, but if it imposes a life sentence, it
must provide the juvenile with some realistic opportunity to obtain release before the end
of that term. Following Graham, a unanimous Florida Supreme Court 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.’” Henry v. State, 175 So. 3d 675, 679 (Fla. 2015) (quoting Graham, 560
U.S. at 75). In reaching this holding the Florida Supreme Court reasoned that the
“Supreme Court's long-held and consistent view that juveniles are different” supported
the conclusion that “the specific sentence that a juvenile nonhomicide offender receives
for committing a given offense is not dispositive as to whether the prohibition against cruel
and unusual punishment is implicated.” Id. at 680. Accordingly, it determined that
Graham was intended to ensure that “juvenile nonhomicide offenders will not be
sentenced to terms of imprisonment without affording them a meaningful opportunity for
early release based on a demonstration of maturity and rehabilitation.” Id. The holding
in Henry was not predicated on the length of the sentence, but rather on the status of,
and the opportunity afforded, the juvenile offender for early release. Johnson v. State,
215 So. 3d 1237, 1240 (Fla. 2017); Henry, 175 So. 3d at 680 (stating that “Eighth
Amendment will not tolerate prison sentences that lack a review mechanism for
evaluating [juvenile nonhomicide] offenders for demonstrable maturity and reform in the
In Kelsey v. State, 206 So. 3d 5 (Fla. 2016), the supreme court reiterated its
reasoning that the constitutionality of a juvenile offender's sentence is not based on the
length of the sentence, but rather, it is dependent upon whether the sentence provided
the offender with a meaningful opportunity for early release based on maturation and
rehabilitation. Id. at 9. Based on its decision in Henry, which it described as
“unequivocal,” it reaffirmed that all juvenile offenders whose sentences met the standard
defined by the Legislature in chapter 2014–220, Laws of Florida, which includes any
sentence longer than twenty years, are entitled to judicial review, not simply those term
of-years sentences that are “de facto life.” Id. at 9–11. Thus, the Florida Supreme Court
has “determined that Graham prohibits juvenile nonhomicide offenders from serving
lengthy terms of incarceration without any form of judicial review mechanism.” Johnson,
215 So. 3d at 1240. The length of the sentence alone is not dispositive. Rather, the
Florida Supreme Court has concluded that the Eighth Amendment, as read through
Graham, requires a review mechanism for nonhomicide juvenile offenders because “any
term of imprisonment for a juvenile is qualitatively different than a comparable period of
incarceration is for an adult.” Id. (citing Henry, 175 So. 3d at 680). Our supreme court
has opined that reading Graham, Henry and Kelsey together requires that juvenile
nonhomicide offenders receive sentences that provide a meaningful opportunity for early
release based on demonstrated maturity and rehabilitation during their natural lifetimes.
Id. at 1239.
In an effort to comply with Graham, in 2014, the Legislature passed chapter 2014–
220, Laws of Florida, which provided judicial review for juvenile offenders, who were tried
as adults, and received sentences of more than twenty years' incarceration, with certain
exceptions. In considering a remedy for a Graham violation, our supreme court
concluded in Horsley v. State, 160 So. 3d 393, 394-95, 405 (Fla. 2015), that chapter 2014
220, Laws of Florida, brought Florida's juvenile sentencing statutes into compliance with
Graham and provided an appropriate remedy for all juvenile offenders whose sentences
are unconstitutional even when, as here, the juvenile's offense was committed prior to the
July 1, 2014, effective date of the legislation. See also Falcon v. State, 162 So. 3d 954,
963 (Fla. 2015).
Following Graham, Henry and Horsley, this Court in Peterson v. State, 193 So. 3d
1034 (Fla. 5th DCA 2016), review denied, No. SC16-1211 (Fla. June 23, 2017), explained
that, regardless of whether a juvenile offender’s sentence is a de facto life sentence, a
lengthy term-of-years sentence that does not afford a nonhomicide juvenile offender a
meaningful opportunity for early release based on demonstrated maturity and
rehabilitation violates Graham and the Eighth Amendment, requiring resentencing with
retroactive application of the 2014 sentencing framework. We concluded that the
supreme court's admonition that a constitutional sentence is one that provides a
meaningful opportunity for early release is not satisfied simply because the juvenile may
be released from prison at some point before the conclusion of his or her life expectancy.
Peterson, 193 So. 3d at 1038. As a result, we held that Peterson’s fifty-six-year sentence
could not stand under Graham and its progeny, and remanded for the trial court to
resentence him under the 2014 juvenile sentencing statutes pursuant to Horsley. Id. at
1039; see also Burrows v. State, 219 So. 3d 910, 911 (Fla. 5th DCA 2017) (holding
defendant with concurrent twenty-five-year sentences was entitled to judicial review after
twenty years); Tyson v. State, 199 So. 3d 1087, 1088 (Fla. 5th DCA 2016) (holding
defendant with aggregate forty-five-year sentence was entitled to judicial review after
twenty years).
Based on these precedents, we agree that the trial court erred in denying
Montgomery’s rule 3.800(b) motions.2 We reverse Montgomery’s sentences for
2 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 forty-five-year and fifty-year sentences imposed on juvenile offenders were constitutional because they did not amount to a “de facto” life sentence. Abrakata, 168 So. 3d at 252 (citing Austin v. State, 127 So. 3d 1286 (Fla. 1st DCA 2013); Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011)). The First District’s reliance on these cases seems to contradict Henry, 175
attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony
murder with a firearm and remand for resentencing in conformance with the 2014 juvenile
sentencing statutes, which includes the judicial review provided by section 921.1402.
However, Montgomery is not entitled to resentencing or a review hearing on the
aggravated assault with a firearm conviction. See Kelsey, 206 So. 3d at 11 (holding
Graham required judicial review hearings for juvenile offenders who are sentenced to
terms longer than twenty years).
Montgomery’s challenge to the imposition of the twenty-five-year mandatory
minimum prison sentences under section 775.087(2), Florida Statutes (2012), commonly
known as the 10-20-Life statute, requires us to consider the interplay between the
mandatory minimum sentences imposed here and the juvenile sentencing scheme, which
mandates a review hearing with the possibility of early release. The 10–20–Life statute
provides for mandatory minimum sentences for certain offenses when a defendant
possesses a firearm (minimum term of imprisonment of either three years or ten years,
depending on the offense), discharges a firearm (minimum term of imprisonment of
twenty years), or discharges a firearm and as the result of the discharge, inflicts death or
great bodily harm (“minimum term of imprisonment of not less than 25 years and not more
than a term of imprisonment of life in prison”). § 775.087(2)(a)(1)-(3), Fla. Stat. (2012).
At the same time, under the 2014 juvenile sentencing statutes, a juvenile offender who
commits a life or first-degree felony punishable by life is entitled to an individualized
So. 3d at 680, which held that the Eighth Amendment “will not tolerate [a juvenile offender’s] prison sentence[ ] that lack[s] a review mechanism,” and the later opinion in Kelsey, 206 So. 3d 5, which vacated a juvenile offender’s forty-five-year sentence as unconstitutional and remanded for resentencing with the benefit of a judicial review.
sentencing hearing under sections 775.082(3) and 921.1401, Florida Statutes (2014).
And, a juvenile nonhomicide offender “sentenced to a term of 20 years or more under s.
775.082(3)(c) is entitled to a review of his or her sentence after 20 years.” §
921.1402(2)(d), Fla. Stat. (2014). Thus, we must determine if a trial court may release a
juvenile after the twenty-year judicial review even if a portion of the mandatory minimum
sentence remains.
We review questions of statutory interpretation de novo. Patrick v. Hess, 212 So.
3d 1039, 1041 (Fla. 2017). Our goal “is to determine legislative intent.” Crews v. State,
183 So. 3d 329, 332 (Fla. 2015). To do so, we begin with the plain meaning of the text
of the statute. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013).
“When the statute is clear and unambiguous, courts will not look behind the statute’s plain
language for legislative intent or resort to rules of statutory construction to ascertain
intent.” Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005). The statute’s plain
and ordinary meaning must control unless this leads to an unreasonable result or a result
clearly contrary to legislative intent. Id.
One rule that guides our analysis is “[t]he doctrine of in pari materia . . . [which]
requires that statutes relating to the same subject or object be construed together to
harmonize the statutes and to give effect to the Legislature’s intent.” Larimore v. State,
2 So. 3d 101, 106 (Fla. 2008) (quoting Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768
(Fla. 2005)). In applying this rule, courts attempt to harmonize potentially conflicting
statutes, if possible. Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla.
2001) (quoting Acosta v. Richter, 671 So. 2d 149, 153-54 (Fla. 1996)).
In 1999, the Florida Legislature enacted the 10-20-Life statute. Section
775.087(2)(a)3., relevant here, provides for a twenty-five-year mandatory minimum:
Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

(Emphasis added). If a defendant falls within the purview of this statute, the trial court
must impose a mandatory minimum sentence of twenty-five years under section
775.087(2)(a)3. Mendenhall v. State, 48 So. 3d 740, 742 (Fla. 2010).
At the same time, the United States Supreme Court’s jurisprudence regarding
juvenile sentencing informs us that, as a matter of constitutional law, “children are
constitutionally different from adults for purposes of sentencing,” and these differences
are not “crime-specific.” Miller v. Alabama, 567 U.S. 460, 471, 473 (2012); see Graham,
560 U.S. at 68; Roper v. Simmons, 543 U.S. 551, 572-73 (2005). In recognition of this
difference and in response to the United States Supreme Court’s decisions, the Florida
Legislature passed chapter 2014–220 in 2014. See Horsley, 160 So. 3d at 394. The
preamble to this chapter reflects that section 775.082 was amended, and sections
921.1401 and 921.1402 were created, to change the “criminal penalties applicable to . . .
juvenile offender[s] for certain serious felonies” and establish “sentence review
proceedings to be conducted after . . . specified period[s] of time . . . [for] certain offenses”
committed by offenders under the age of eighteen. The sentencing scheme established
in chapter 2014-220 provides, in relevant part, that juveniles convicted of nonhomicide
offenses and sentenced to a term of imprisonment of more than twenty years are entitled
to a review of their sentences after twenty years. §§ 775.082(3)(c), 921.1402(2)(d), Fla.
Stat. (2014). In reviewing a nonhomicide juvenile’s sentence at twenty years, the
sentencing court must determine whether a sentence modification is warranted after
reviewing, among other things, the juvenile offender’s youth and attendant characteristics
at the time of the offense, whether the juvenile offender demonstrates maturity and
rehabilitation, and whether the juvenile offender remains at the same level of risk to
society as he or she did at the time of the initial sentencing. Id. § 921.1402(6).
As the Florida Supreme Court has stated:
It is a well settled rule of statutory construction . . . that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation “the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.”

McDonald v. State, 957 So. 2d 605, 610 (Fla. 2007) (quoting Adams v. Culver, 111 So.
2d 665, 667 (Fla. 1959)). And, a more recently enacted statute will control over older
statutes as “[t]he more recently enacted provision may be viewed as the clearest and
most recent expression of legislative intent.” Palm Beach Cty. Canvassing Bd. v. Harris,
772 So. 2d 1273, 1287 (Fla. 2000); see also Fla. Virtual Sch. v. K12, Inc., 148 So. 3d 97,
102 (Fla. 2014). These principles thus require that if there is a conflict, sections 775.082
and 921.1402, which are more recent and specifically address the criminal penalties and
sentence review procedures applicable to juveniles convicted of certain serious offenses,
would prevail over section 775.087(2)(a), which is older and is a general sentencing
statute covering the mandatory minimum for all offenders who, in the course of certain
felonies, discharge a firearm and, as a result of the discharge, cause death or great bodily
We believe these statutes can be harmonized because the juvenile sentencing
statutes contemplate the modification of any sentence after the mandated judicial review.
For example, under section 775.082(1)(b)1., a sentencing court is required to impose a
minimum sentence of forty years to life imprisonment with a twenty-five-year judicial
review (as long as the juvenile was not previously convicted of a separate criminal
offense) when sentencing a juvenile convicted of a capital offense with an actual intent to
kill. The forty-year minimum sentence notwithstanding, if the court determines at a
sentence review hearing twenty-five years later that the juvenile offender has been
rehabilitated and is reasonably believed to be fit to reenter society, the court is authorized
to modify the sentence by releasing the juvenile based on maturity and rehabilitation but
must impose a term of probation of at least five years. § 921.1402(7), Fla. Stat. (2014).
This is still true even though section 944.275(4)(f), Florida Statutes (2014), which
mandates prisoners to serve at least eighty-five percent of the sentence imposed, would
require the juvenile offender to serve a minimum of thirty-four years. Nonetheless, the
juvenile offender would be entitled to a judicial review and possible release in twenty-five
3 This Court recently determined that the 2014 juvenile sentencing laws did not affect the ten-year mandatory minimum under section 775.087(2). Young v. State, 219 So. 3d 206, 210-11 (Fla. 5th DCA 2017). That case is distinguishable because no juvenile offender is entitled to a review hearing unless his sentence exceeds fifteen years. See § 921.1402(2)(c), Fla. Stat. (2015).

Reading the juvenile sentencing statutes and the 10-20-Life statute in pari materia,
the following sentencing scheme emerges for nonhomicide juvenile offenders. Under
section 775.082(3), the court must provide a nonhomicide juvenile offender, who is
convicted of certain serious offenses, an individualized sentencing hearing. If the
nonhomicide juvenile offender is sentenced to more than twenty years, the court must
provide a judicial review after twenty years, pursuant to section 921.1402(2)(d), to afford
him or her a meaningful opportunity to obtain early release. However, if the nonhomicide
juvenile offender, in the course of committing certain enumerated felonies, discharged a
firearm and as the result of the discharge, inflicted death or great bodily harm, the juvenile
must be sentenced to a twenty-five-year mandatory minimum. § 775.087(2), Fla. Stat.
(2012). Nonetheless, he or she would still be entitled to a twenty-year statutory review of
his or her sentence under section 921.1402(2)(d) with the possibility of early release. See
generally Gridine v. State, 175 So. 3d 672, 675 (Fla. 2015) (reversing juvenile
nonhomicide offender’s aggregate seventy-year sentence with twenty-five-year
mandatory minimum because it failed to provide defendant with judicial review, and
thereby, meaningful opportunity for future release). At that judicial review, after
considering the enumerated factors of section 921.1402(6) along with any other factor it
deems appropriate to review the juvenile’s sentence, the sentencing court is authorized
to modify the sentence and impose a term of probation of at least five years if the court
determines modification is warranted. § 921.1402(7), Fla. Stat. (2014).
A twenty-five-year mandatory minimum sentence does not implicate the factors
deemed unacceptable when those penalties are imposed on juveniles, namely, the futility
of rehabilitation and the permanent deprivation of all hope to become a productive
member of society, both of which occur when the court is prevented from taking a second
look at the incarcerated offender's demonstrated growth and maturity. Rather,
irrespective of the twenty-five-year mandatory minimum, a juvenile offender will be able
to work toward his rehabilitation and look forward to a judicial review after twenty years,
with an opportunity for release at a relatively young age. Accordingly, we hold that the
mandatory twenty-five-year minimum sentence at issue in this case does not constitute
cruel and unusual punishment when appliied to a juvenile offender as long as he or she
gets the mandated judicial review.

Outcome: We affirm Montgomery’s convictions without further discussion, but reverse his
sentences and remand for resentencing for the attempted robbery with a firearm, aggravated battery with a firearm, and attempted felony murder with a firearm convictions in conformance with chapter 2014–220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

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