DENNIS v. STATE

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Jason DENNIS, Appellant, v. STATE of Florida, Appellee.

No. 4D13–1045

Decided: March 29, 2017

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Attorney General, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

We reverse the order denying appellant's motion for postconviction relief and remand for resentencing pursuant to Atwell 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 (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 resentencing.

Per Curiam.

Gross, Taylor and Levine, JJ., concur.

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