IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
November 18, 2016
DANNY WAITERS, JR., )
)
Appellant, )
)
v. ) Case No. 2D14-4589
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
BY ORDER OF THE COURT:
Appellant's motion for rehearing is denied; the motion for a written opinion is
granted. The prior per curiam affirmance dated April 8, 2016, is withdrawn, and the
attached opinion is issued in its place. No further motions for rehearing will be
entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DANNY WAITERS, JR., )
)
Appellant, )
)
v. ) Case No. 2D14-4589
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed November 18, 2016.
Appeal from the Circuit Court for
Manatee County; Edward Nicholas,
Judge.
Howard L. Dimmig, II, Public Defender,
and Carol J.Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jason M. Miller,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
Danny Waiters appeals from his conviction and sentence for second
degree murder. He raises two issues in this appeal, neither of which require reversal.
However, we write to explain why we have affirmed the denial of his motion to correct
sentencing error. Waiters, who was seventeen years old when the offense was
committed, is serving a forty-year sentence for second-degree murder. He contends
that pursuant to Horsley v. State, 160 So. 3d 393 (Fla. 2015), he was entitled to be
sentenced under section 921.1402, Florida Statutes (2014),1 even though his crime was
committed before the effective date of the statute. Horsley held that section 921.1402
applies to all juvenile offenders whose sentences are unconstitutional under Miller v.
Alabama,
132 S. Ct. 2455 (2012), regardless of when their crimes were committed.
Horsley,
160 So. 3d at 405-06. Miller held that a mandatory life sentence without parole
for juvenile homicide offenders is unconstitutional.
132 S. Ct. at 2469. Because
Waiters did not receive a mandatory life sentence without parole, his sentence is not
unconstitutional under Miller and he was not entitled to be sentenced under section
921.1402. Moreover, Waiters' forty-year sentence is not a de facto life sentence without
parole, see, e.g., Williams v. State,
197 So. 3d 569, 572 (Fla. 2d DCA 2016) (holding
that a fifty-year sentence is not the equivalent of a life sentence without the possibility of
parole), qualifying him for relief under Landrum v. State,
192 So. 3d 459, 469 (Fla.
2016) (reversing Landrum's nonmandatory life-without-parole sentence for second-
degree murder imposed without individualized consideration of Landrum's "youth and its
attendant characteristics" that is required under Miller). Accordingly, we affirm the
denial of his motion to correct sentencing error.
MORRIS and BLACK, JJ., Concur.
KELLY, J., Concurs in result.
1
Section 921.1402 provides for review of a juvenile's sentence to allow the
juvenile an opportunity to obtain early release based upon demonstrated maturity and
rehabilitation.
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KELLY, Judge, Concurring in result.
I concur in result because I believe this court's precedent, and particularly
Williams, requires me to do so. Whether Waiters was entitled to be sentenced under
section 921.1402 hinges on what the Florida Supreme Court meant in Horsley when it
stated the new statute applies to "all juvenile offenders whose sentences are
unconstitutional under Miller." Horsley, 160 So. 3d at 395 (emphasis added). As have
others, this court has adopted a literal view of what it means for a sentence to be
unconstitutional under Miller (prohibiting sentencing schemes that mandate life in prison
without possibility of parole for juvenile offenders convicted of murder) or Graham v.
Florida,
560 U.S. 48 (2010) (invalidating life without parole sentences for juveniles
convicted of nonhomicide offenses). See, e.g., Williams,
197 So. 3d at 572. However,
the Florida Supreme Court has emphasized that it has "consistently followed the spirit of
Graham and Miller rather than a narrow, literal interpretation." Atwell v. State,
197 So.
3d 1040, 1046 (Fla. 2016), reh'g denied, No. SC14-193,
2016 WL 4440673 (Aug. 23,
2016). It again made this point recently in Atwell where it stated, "[i]t is thus evident
from our case law that this Court has—and must—look beyond the exact sentence
denominated as unconstitutional by the Supreme Court and examine the practical
implications of the juvenile's sentence, in the spirit of the Supreme Court's juvenile
sentencing jurisprudence." Id. at 1047. In rejecting the notion that a life sentence under
Graham meant only a sentence denominated as life in prison, the supreme court in
Henry v. State,
175 So. 3d 675 (Fla. 2015), stated,
In light of the United States Supreme Court's longheld and consistent view that juveniles are different—with
-3-
respect to prison sentences that are lawfully imposable on
adults convicted for the same criminal offenses—we
conclude that, when tried as an adult, the specific sentence
that a juvenile nonhomicide offender receives for committing
a given offense is not dispositive as to whether the
prohibition against cruel and unusual punishment is
implicated.
Id. at 680.
The supreme court's focus has been on the need for individualized
sentencing procedures for juveniles—procedures different from those used for adults—
as well as the need for a subsequent review mechanism that provides juveniles with a
meaningful opportunity for release. See id.; see also Landrum, 192 So. 3d at 468-69;
Henry,
175 So. 3d at 680; Horsley,
160 So. 3d at 406.
I acknowledge that the supreme court has not held that a juvenile
homicide offender who is sentenced to a lengthy term of years, without an individualized
sentencing hearing and without an opportunity for subsequent review, is serving a
sentence that is unconstitutional under Miller. However, given its emphasis on the
necessity for these procedures—as opposed to a focus on the actual sentence
imposed—I would reverse the denial of Waiters' motion and remand for resentencing
under the new statutory scheme.
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