Falcon v. State

111 So. 3d 973, 2013 WL 1809742, 2013 Fla. App. LEXIS 6822

• Court: District Court of Appeal of Florida
• Decided: April 30, 2013
• Docket: No. 1D13-0034
• Status: Published

Opinions

PER CURIAM.

Rebecca Lee Falcon currently serves a mandatory life sentence without parole for the first-degree murder she committed in 1999 when she was 15 years old. In August 2012, she filed a motion for postconviction relief and/or to correct illegal sentence, arguing that the United States Supreme Court’s recent decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), should be given retroactive effect and that she should be resentenced following an individualized sentencing hearing.

The trial court properly denied relief, citing this Court’s decision in Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012) as well as the Third District’s decision in Geter v. State, — So.3d -, 2012 WL 4448860, 37 Fla. L. Weekly D2283 (Fla. 3d DCA Sept. 27, 2012), both of which held that Miller does not apply retroactively to cases on collateral review. This Court has decided the retroactivity issue, and we see no reason to further pass upon the question other than to reaffirm that Gonzalez controls in this district. However, we recognize that federal and state court decisions are sharply divided on this issue.¹ Because the question is one of great public importance that merits possible consideration by our supreme court via its discretionary jurisdiction, we affirm based on Gonzalez and certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER THE RULE ESTABLISHED IN MILLER V. ALABAMA, - U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), “THAT MANDATORY LIFE WITHOUT PAROLE FOR THOSE UNDER THE AGE OF 18 AT THE TIME OF THEIR CRIMES VIOLATES THE EIGHTH AMENDMENT ],” SHOULD BE GIVEN RETROACTIVE EFFECT?

AFFIRMED.

RAY and MAKAR, JJ., concur. BENTON, C.J., concurs with opinion.

1 . Compare Craig v. Cain, 2013 WL 69128 (5th Cir. Jan.4, 2013) (not retroactive); People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012) (not retroactive); Geter v. State, - So.3d at -, 37 Fla. L. Weekly at D2283 (not retroactive) with Hill v. Snyder, No. 10-14568, 2013 WL 364198 (E.D.Mich. Jan. 30, 2013) (retroactive); State v. Simmons, 99 So.3d 28 (La.2012) (retroactive); People v. Morfin, 367 Ill.Dec. 282, 981 N.E.2d 1010 (Ill.App.Ct.2012) (retroactive).