Dennis v. State

215 So. 3d 1258, 2017 WL 1175883, 2017 Fla. App. LEXIS 4164

Opinion

Per Curiam.

We reverse the order denying appellant’s motion for postconviction relief and remand for resentencing pursuant to At-well v. State, 197 So.3d 1040 (Fla. 2016). Appellant is entitled to be resentenced pursuant to the sentencing provisions enacted in Chapter 2014-220, Laws of Florida. Id. at 1050; Michel v. State, 204 So.3d 101 (Fla. 4th DCA 2016) (certifying conflict with Stallings v. State, 198 So.3d 1081 (Fla. 5th DCA 2016), and Williams v. State, 198 So.3d 1084 (Fla. 5th DCA 2016)).

Appellant’s claim that his sentence for the non-homicide count violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), was not raised in the motion filed below and may not be raised for the first time in this appeal. Atwell, 197 So.3d at 1043, n.1. Appellant may raise this claim through a proper motion filed in the trial court following remand.

Reversed and remanded for resentenc-ing.

Gross, Taylor and Levine, JJ., concur.