Atwell v. State, No. SC14-193, 2016 WL 3010795 (Fla. May 26, 2016) – Juvenile offender (age 16 at time of crimes) was convicted of armed robbery and first-degree murder in 1992. He was originally sentenced to mandatory life with the possibility of parole after 25 years (murder) and life without parole (armed robbery). In 2013, Atwell moved for postconviction relief, arguing his life sentence violated Miller. While the case was pending, the Commission on Offender Review conducted Atwell’s parole hearing—which was 25-years after Atwell had been sentenced—and set a presumptive parole release date of December 27, 2130, with another review in February 2022. However, the Florida Supreme Court noted that “[b]ecause static factors, such as the crime he committed and his other crimes . . . account for all but 84 of the 1,686 months (140.5 years), there is no realistic chance of a change in the presumptive parole release date.”
The court stated that “throughout this Court’s post-Graham and Miller juvenile sentencing jurisprudence, we have consistently followed the spirit of Graham and Miller rather than a narrow, literal interpretation.” Thus, the court emphasized that it is “evident from our case law that this Court has—and must—look beyond the exact sentence denominated as unconstitutional by the [U.S.] Supreme Court and examine the practical implications of the juvenile’s sentence, in the spirit of the [U.S.] Supreme Court’s juvenile sentencing jurisprudence.” After discussing how the parole system operates in Florida, the court concluded that “[i]n most respects, a sentence of life with the possibility of parole for first-degree murder . . . actually resembles a mandatory [life without parole sentence] that is not ‘proportionate to the offense and the offender.’” (citation omitted). Based on Florida’s “objective parole guidelines,” an individual convicted of an offense under Fla. Stat. § 775.082, like Atwell, will have a presumptive parole release date between 300-9,998 months in the future. Additionally, Florida’s parole process requires that “primary weight” be given to the “seriousness of the offender’s present offense” and “past criminal record.” If an offender convicted of first-degree murder has a high “salient score,” then the presumptive parole release date could be hundreds of years away. Further, this span “could be lawfully imposed without the Commission on Offender Review even considering mitigating circumstances,” because the “Commission is only required to consider mitigating and aggravating circumstances if it wishes to impose a presumptive parole release date that falls outside the given range of months.” Even then, “the enumerated mitigating and aggravating circumstances” in the Florida Administrative Code “do not have specific factors tailored to juveniles.” Thus, “they completely fail to account for Miller.” The court therefore concluded that “[u]sing Florida’s objective parole guidelines . . . a sentence for first-degree murder under the pre-1994 statute is virtually guaranteed to be just as lengthy as, or the ‘practical equivalent’ of, [a life without parole sentence].” “A presumptive parole release date set decades beyond a natural lifespan is at odds” with Montgomery.
The court noted that although some states have chosen parole as a remedy for Graham and Miller issues, Florida’s parole procedures differ in very significant ways. For example, “there are no special protections expressly afforded to juvenile offenders and no consideration of the diminished culpability of youth at the time of the offense. The Miller factors are simply not part of the equation.” Moreover, the court recognized “that the Florida Legislature did not choose a parole-based approach to remedy sentences that are unconstitutional under Graham and Miller.” Instead, the Legislature enacted chapter 2014-220, Laws of Florida which uses criteria specifically tailored to juveniles based on the Miller factors, plus judicial sentence review. “Parole is, simply put, ‘patently inconsistent with the legislative intent’ as to how to comply with Graham and Miller.” (quoting Horsley). “The Supreme Court has emphasized—and this Court’s own case law has followed—that the Eighth Amendment requires a trial court to ‘take into account the differences among defendants and crimes’ before imposing a sentence that is, in effect, a sentence to a lifetime in prison.” (citing to Miller, Horsley, and Falcon). “Atwell’s sentence effectively resembles a mandatorily imposed [life without parole] sentence, and he did not receive the type of individualized sentencing consideration Miller requires. The only way to correct Atwell’s sentence . . . is to resentence Atwell in conformance with chapter 2014-220, Laws of Florida.” Quashed decision upholding life sentence for first-degree murder and remanded for resentencing on that count.
*NOTE: The court recognized that Atwell’s life without parole sentence for armed robbery “is clearly unconstitutional under Graham.” Because this issue was not raised in this appeal, however, the Florida Supreme Court did not consider that sentence. The court noted that Atwell “may file the proper motion in the trial court . . . to seek correction of this sentence.”