LESTER SIMMONS, Appellant, v. STATE OF FLORIDA, Appellee.
No. 1D18-191
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
May 16, 2019
On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.
In 1967, Lester Simmons was convicted for the rape of an adult woman. He was fifteen years old when he committed the offense. Simmons pleaded guilty in exchange for the prosecutor‘s agreement not to recommend a sentence of death.1 The victim testified at the sentencing hearing that Simmons surreptitiously entered her home and raped her. The trial court sentenced Simmons to life with the possibility of parole.
For Simmons, the possibility of parole was realized—he was granted parole twice and spent nearly eighteen years on parole, before his parole was revoked for a second time. Then, in 2016, almost fifty years after his sentence became final, Simmons moved for postconviction relief under
Simmons argued that his sentence of life with the possibility of parole did not afford him a meaningful opportunity for release based on a demonstration of his maturity and rehabilitation. The postconviction court ordered the State to respond to Simmons’ motion. The State responded, conceding that Atwell entitled Simmons to resentencing. The court granted Simmons’ motion and ordered resentencing under the juvenile sentencing provisions enacted in chapter 2014-220, Laws of Florida, which have been codified in sections
But before resentencing occurred, the court learned of changes in the law casting doubt on whether Simmons should be resentenced. In Currie v. State,2 this Court held that a sentence of life with the possibility of parole, like the one Simmons received, was not the functional equivalent of a life sentence without the possibility of parole when the defendant was in fact released on parole. 219 So. 3d 960, 960 (Fla. 1st DCA 2017). We concluded that Currie was not entitled to resentencing under Atwell. Currie, 219 So. 3d at 960.
After being advised of Currie, the postconviction court directed the parties to address whether Simmons’ sentence was lawful. The court heard arguments from the parties and determined that Simmons’ sentence of life with the possibility of parole was permissible under Currie and similar intervening decisions by other district courts.3 Seven months after granting Simmons’ postconviction motion, the court entered an order rescinding its original order and denying the motion. Simmons appealed the second order, arguing that he was entitled to resentencing. We agree.
Because the order granting resentencing became final when neither party moved for rehearing or appealed the order, the trial court had no authority to enter a second order rescinding the original order. This Court has twice held that an order on a motion for postconviction relief is final and appealable even when resentencing has not occurred. See Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012); Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012). And the supreme court has agreed. See Taylor v. State, 140 So. 3d 526 (Fla. 2014).
In Jordan, we addressed for the first time whether a postconviction order granting resentencing is final when resentencing
We next considered the finality of a postconviction order in Slocum. There, the court denied Slocum‘s postconviction challenge to his convictions while granting resentencing. Slocum, 95 So. 3d at 912. The court appointed counsel to represent Slocum at a resentencing hearing that occurred more than thirty days after the court granted Slocum‘s postconviction motion. Id. After resentencing, a timely notice of appeal was filed. Id. Slocum‘s pro se notice reflected that he was appealing the portion of the court‘s order that denied the challenges to his convictions. Id. In conformity with his notice of appeal, the initial brief challenged only the summary denial of a claim for postconviction relief, not the resentencing. Id. Relying on Jordan, we determined that the court‘s order on the postconviction motion became final when neither party moved for rehearing. Id. at 913. Because Slocum did not appeal within thirty days of the date the postconviction order was entered and because the initial brief did not challenge the resentencing, this Court dismissed the appeal for lack for jurisdiction. Id.
More recently, the supreme court, in Taylor, accepted review of a case from the Fifth District that conflicted with Slocum. Taylor, 140 So. 3d at 527. The question presented was “whether an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, when the relief granted requires subsequent action in the underlying case, such as resentencing.” Id. The supreme court answered the question in the affirmative, holding that unlike an order denying a claim in a postconviction motion and granting an evidentiary hearing on a different claim, an order denying relief in part and granting it in part is a final, appealable order because it marks the end of judicial labor on the postconviction motion. Id. at 528-29. The court rejected the State‘s argument that “permitting a postconviction appeal to proceed separately from a resentencing appeal will encourage piecemeal litigation because, as we have previously explained in other cases, postconviction proceedings and resentencing proceedings are separate, legally discrete proceedings.” Id. at 529. The supreme court held that an “order partially denying and partially granting a motion for postconviction relief was a final appealable order, even though resentencing remained to be completed in the underlying case.” Id.
Simmons argues that the postconviction court lacked jurisdiction to rescind its order granting Simmons’ postconviction motion. The State concedes that the original order was a final, appealable order. But the State contends that the lower court could still revisit its ruling on the postconviction motion because
The order granting Simmons’ postconviction motion was a final, appealable order because it brought an end to the judicial labor on the motion. Taylor, 140 So. 3d at 528-29; Slocum, 95 So. 3d at 912; Jordan, 81 So. 3d at 596. The finality of the order was not delayed because neither party moved for rehearing or reconsideration of the order. See
QUASHED and REMANDED with directions.
KELSEY, J., concurs; BILBREY, J., concurring with opinion.
Not final until disposition of any timely and authorized motion under
BILBREY, J., concurring.
I agree with the majority that the order on appeal must be reversed. Under existing case law, as discussed by the majority opinion, the trial court was unable to rescind the March 2017 resentencing order once the order became final. The fact that the December 2017 order appears to me to be a correct statement of the law does not change the consideration.
I write separately to note that when Simmons is resentenced, “the decisional law effective at the time of the resentencing applies.” State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Unless the law changes before resentencing, the current decisional law is that the Eighth Amendment is not violated when a defendant sentenced for a nonhomicide offense committed as a juvenile has an opportunity for parole. See Franklin v, State, 258 So. 3d 1239, 1241 (Fla. 2018). This is especially so where an offender, like Simmons, “was afforded a meaningful opportunity to obtain release and, in fact, was released on parole.” Currie v. State, 219 So. 3d 960, 960 (Fla. 1st DCA 2017). I therefore believe that the trial court can, if it chooses, legally reimpose the same sentence.
Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.