FALCON v. STATE

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Rebecca Lee FALCON, Appellant, v. STATE of Florida, Appellee.

No. 1D13–0034.

Decided: April 30, 2013

Elliot H. Scherker, Greenberg Traurig, P.A., Miami, Paolo G. Annino, Public Interest Law Center, Florida State College of Law, Tallahassee, and Karen M. Gottlieb, Coconut Grove, for Appellant. Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

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, 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.

Last term the Supreme Court of the United States held “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ “ Miller v. Alabama, ––– U.S. ––––, ––––, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012). The Court handed down its ruling in a single opinion written in two cases argued in tandem, Miller and Jackson v. Hobbs. Id. The court had accepted the Jackson case to review a decision of the Supreme Court of Arkansas, in which another juvenile had, like Miller and like the appellant in our case, committed murder, been tried as an adult, and been sentenced to life without parole under a statute mandating such a sentence, without “requiring individualized consideration before sentencing a juvenile to life imprisonment without possibility of parole.” 132 S.Ct. at 2469–70.

Evan Miller, the defendant in the Alabama case, appealed his conviction and sentence directly to the Alabama Court of Criminal Appeals initially, then obtained further, direct review in the United States Supreme Court. Id. at 2463. But Kuntrell Jackson, the defendant in the Arkansas case—like the appellant2 in our case—had reached the end of the line on direct appeal, without obtaining any relief. Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (Ark.2004). Only after he had lost on direct in the Supreme Court of Arkansas, did “Jackson file[ ] a state petition for habeas corpus.” 132 S.Ct. at 2461. “The [state] circuit court ․ granted the State's motion to dismiss [the post-conviction habeas petition․ And] the Arkansas Supreme Court [eventually] affirmed the dismissal of Jackson's [state habeas] petition. See Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103.” Id.

It was on review of the Arkansas Supreme Court's affirmance of the lower Arkansas court's disallowance of Jackson's collateral attack on his sentence that Jackson and Miller became companion cases in the Supreme Court of the United States. The difference in their procedural postures notwithstanding, the Supreme Court of the United States reversed both state appeals court judgments and, in Jackson and Miller alike, “remand[ed] the cases for further proceedings not inconsistent with this opinion,” id. at 2475, i.e., in order to afford the states' sentencing authorities “the opportunity to consider mitigating circumstances before [possibly re]imposing the harshest possible penalty for juveniles.” Id.

Albeit in a different connection, Justice Alito in dissent described Miller and Jackson as “two (carefully selected) cases.” Id. at 2489. Plainly they were carefully selected partly to make clear to the discerning reader that the rule laid down in Miller and Jackson applied whether or not the mandatorily life-without-parole-sentenced juvenile's case was still “in the pipeline.”

A panel of the First District recently held in Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012), however, that “Miller is not retroactive in application and because Gonzalez' case [sic] was final before Miller was issued, he is not entitled to relief.”3 But Jackson's direct appeal, too, “was final before Miller was issued.” Id. Without addressing the Jackson case,4 the Gonzalez panel relied on “the decision of the Third District in Geter v. State of Florida, ––– So.3d –––– (Fla. 3d DCA 2012),5 [and] adopt[ed Geter's ] reasoning in its entirety.” Id. While the Third District's decisions are often persuasive, the Supreme Court's decisions are binding on Eighth Amendment questions.

PER CURIAM.

RAY and MAKAR, JJ., Concur. BENTON, C.J., Concurs with Opinion.