ROBERT LEE DAVIS JR v. STATE OF FLORIDA

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Supreme Court of Florida.

ROBERT LEE DAVIS, JR. Petitioner(s) v. STATE OF FLORIDA Respondent(s)

CASE NO.: SC16-1905

Decided: January 19, 2018

Upon review of the response to this Court's Order to Show Cause dated May 8, 2017, the Court has determined that it should accept jurisdiction in this case. It is ordered that the Petition for Review is granted, that the Fourth District Court of Appeal's decision in this case is quashed, and this matter is remanded for resentencing in light of the decision in Johnson v. State, 215 So. 3d 1237 (Fla. 2017).

No Motion for Rehearing will be entertained by the Court.

I would not remand this case for resentencing. Unlike the majority, I believe that a juvenile nonhomicide offender's sentence must violate Graham v. Florida, 560 U.S. 48 (2010), in order for that defendant to be entitled to resentencing pursuant to Graham. See Kelsey v. State, 206 So. 3d 5, 14 (Fla. 2016) (Polston, J., dissenting). In this case, as the Fourth District explained, Davis “is expected to be released when he is in his mid-50s.” Davis v. State, 199 So. 3d 546, 547 (Fla. 4th DCA 2016). Therefore, because Davis' sentence is not a de facto life sentence, resentencing pursuant to Graham is not applicable. Accordingly, I respectfully dissent.

A True Copy

Test:

John A. Tomasino Clerk Supreme Court

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Served:

MITCHELL ALAN EGBER

ASHLEY N. MINTON

HON. LONN WEISSBLUM, CLERK

HON. JOSEPH E. SMITH, CLERK

HON. ROBERT EUGENE BELANGER, JUDGE

POLSTON, J., dissenting.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ., concur. CANADY and LAWSON, JJ., concur.

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