ANDREWS v. STATE (2021)

U'Dreka Andrews and her co-defendant burglarized a home in 2005, robbing and killing the victim in his bedroom. Appellant, who was seventeen years old at the time of her crimes, was convicted as a principal to first-degree felony murder, burglary, robbery, and grand theft. She was sentenced to life in prison. After the Florida Supreme Court held in Falcon v. State, 162 So. 3d 954 (Fla. 2015) that the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) applies retroactively, Appellant was resentenced. At the resentencing hearing, the State again sought a life sentence. Appellant put on mitigating evidence, and the court concluded that a life sentence wasn't appropriate. The court sentenced Appellant to 45 years followed by probation. Appellant now appeals that sentence. We affirm.

Appellant's first contention is that the resentencing court was bound by a comment made by the original sentencing judge who stated that, “I think probably if I had my druthers and full discretion, it'd probably be in the neighborhood of - - of twenty years. ․” We see no error with the 45-year sentence, however, because the court possessed full sentencing discretion at the resentencing. Resentencing is a de novo action. See Serrano v. State, 279 So. 3d 296, 305 (Fla. 1st DCA 2019). And a successor judge “must review the record ․ and make sure that the imposition of sentence is ‘his or her act of independent judgment,’ not ‘reliance on the decision of the original judge.’ ” Id. (quoting Peters v. State, 128 So. 3d 832, 840–41 (Fla. 4th DCA 2013)); Morton v. State, 789 So. 2d 324, 334 (Fla. 2001) (noting that “the trial court is under no obligation to make the same findings as those made in a prior sentencing proceeding”). Here, the trial court correctly employed its own independent judgment in sentencing Appellant.

Appellant next claims that, in imposing sentence, the court improperly discounted her status as a juvenile. Appellant points to the court's reference that she was 17 and “a very mature 17-year-old,” to argue that the court improperly discounted her status as a juvenile. But the evidence doesn't support Appellant's argument here. Indeed, the court found that life was not an appropriate sentence based on the statutory factors it was required to consider. See § 921.1401(2), Fla. Stat. The court noted specifically that the defendant was a minor at the time of her crime: “[s]he was not 18 and that's an important factor.” We find no basis in the record to conclude that the court improperly discounted Appellant's status as a juvenile.

Appellant also contends that her sentence is disproportionate to that of other juveniles who have committed homicides and received lesser sentences than she did. But a 45-year sentence is not grossly disproportionate to the crime of first-degree felony murder. See Adaway v. State, 902 So. 2d 746, 749–50 (Fla. 2005) (discussing the primacy of considering whether the gravity of the offense fits the harshness of the penalty); Solem v. Helm, 463 U.S. 277, 290 n.15, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (recognizing that “clearly no sentence of imprisonment would be disproportionate for [the crime of felony murder]”). There is no error on this issue.

Finally, we find no errors related to Appellant's arguments challenging the terms of her probation and the fine and surcharge.

Affirmed.

Osterhaus, J.

B.L. Thomas and M.K. Thomas, JJ., concur.