State v. West

District Court of Appeal of Florida

State v. West

262 So. 3d 818

CourtDistrict Court of Appeal of Florida

DecidedJanuary 9, 2019

DocketNo. 4D16-4252

StatusPublished

This text of 262 So. 3d 818 (State v. West) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. West, 262 So. 3d 818 (Fla. Ct. App. 2019).

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Opinion

Per Curiam.

*819The 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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Franklin v. State , 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.

In State v. Michel , 257 So.3d 3 (Fla. 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 , 258 So.3d at 1241.

Reversed.

Taylor, Damoorgian and Klingensmith, JJ., concur.

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Per Curiam.

*819The 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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Franklin v. State , 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.

In State v. Michel , 257 So.3d 3 (Fla. 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 , 258 So.3d at 1241.

Reversed.

Taylor, Damoorgian and Klingensmith, JJ., concur.

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Bluebook (online)

262 So. 3d 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-west-fladistctapp-2019.

Opinion

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