DONOVAN JONATHAN TILLMAN v. STATE OF FLORIDA

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District Court of Appeal of Florida, Fourth District.

DONOVAN JONATHAN TILLMAN, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D13-2516

Decided: May 30, 2018

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

We deny rehearing. As to the sentencing issue, we have concluded in Hart v. State, 43 Fla. L. Weekly D970a (Fla. 4th DCA May 2, 2018), that Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), has not been applied to sentences of thirty years or less. Thus, chapter 2014-220, Laws of Florida should not be applied retroactively to an original sentence which does not violate Graham. Although appellant's sentence is thirty-one years, we conclude that it too does not violate Graham and chapter 2014-220 does not apply.

We certify conflict with the same cases noted in Hart:

Cuevas v. State, ––– So. 3d ––––, 43 Fla. L. Weekly D563 (Fla. [2d DCA] Mar. 9, 2018) (reversing the denial of a rule 3.800(a) motion and concluding that a juvenile non-homicide offender's sentences of 26 years in prison were unconstitutional under Graham as construed in Henry and Johnson); Blount v. State, 238 So. 3d 913 (Fla. 2d DCA 2018) (reversing the denial of a rule 3.800(a) motion to correct juvenile nonhomicide sentences of 40 years in prison and remanding for resentencing pursuant to Johnson); Mosier v. State, 235 So. 3d 957 (Fla. 2d DCA 2017) (reversing the denial of a rule 3.800(a) motion and concluding that a juvenile nonhomicide offender's sentences of 30 years in prison followed by 10 years of sexual offender probation were unconstitutional under Graham as construed in Henry and Johnson); Alfaro v. State, 233 So. 3d 515, 516 (Fla. 2d DCA 2017) (reversing 30-year sentences for nonhomicide offenses and rejecting trial court's conclusion that “Kelsey only applied to juvenile offenders like Kelsey who initially received life sentences but had been resentenced to a term of years under Graham”); Burrows v. State, 219 So. 3d 910, 911 (Fla. 5th DCA 2017) (reversing denial of postconviction relief and remanding for resentencing where juvenile offender received 25-year sentences for non-homicide offenses).

Hart, at *4.

WARNER, J., dissents in part with opinion.

For the same reasons I dissented in Hart v. State, 43 Fla. L. Weekly D970a (Fla. 4th DCA May 2, 2018), I dissent from the denial of the motion for rehearing on sentencing. I concur in the denial of the other grounds for rehearing.

PER CURIAM.

CIKLIN and KLINGENSMITH, JJ., concur.