Thomas Kelsey v. State of Florida ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THOMAS KELSEY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-518
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 9, 2015.
An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant
Attorney General, Tallahassee, for Appellee.
ON MOTION FOR REHEARING
PER CURIAM.
On March 26, 2010, Thomas Kelsey was sentenced to two life sentences and
two concurrent twenty five year terms for the four nonhomicide offenses he
committed in 2002 at the age of fifteen: armed burglary with an assault or battery,
armed robbery, and two counts of sexual battery. A few months later, the Supreme
Court announced its decision in Graham v. Florida, 560 U.S. 48 (2010), pursuant
to which Kelsey was resentenced to concurrent forty-five year sentences for each
offense. The issue presented is whether he is entitled to be resentenced again under
Graham and its progeny including recent juvenile sentencing legislation and
decisions of our supreme court. We initially answered that question in the negative,
but Kelsey has asked that we reconsider our legal analysis, which we have done,
concluding that he is not entitled to resentencing again.
While this appeal was pending, the Florida Supreme Court decided Henry v.
State, 40 Fla. L. Weekly S147 (Fla. Mar. 19, 2015),1 holding that “the
constitutional prohibition against cruel and unusual punishment under Graham is
implicated when a juvenile nonhomicide offender’s sentence does not afford any
‘meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.’” Id. (citing Graham, 560 U.S. at 75). The court stated that “Graham
requires a juvenile nonhomicide offender . . . to be afforded such an opportunity
during his or her natural life.” Id. Because Henry had been resentenced after
Graham to ninety years, requiring that he be imprisoned “until he is at least ninety-
five years old,” our supreme court concluded his aggregate sentence—which did
not afford him the “meaningful opportunity” for release that Graham requires
during an offender’s “natural life”—was unconstitutional and that he “should be
1
Henry was released after the filing of the initial and answer briefs, but before the
time for filing of the reply brief, in this case.
2
resentenced in light of the new juvenile sentencing legislation enacted by the
Florida Legislature in 2014, ch. 2014-220, Laws of Fla.” Id.; cf. Thomas v. State,
78 So. 3d 644 (Fla. 1st DCA 2011) (concurrent fifty-year terms without possibility
of parole is not the functional equivalent of a life sentence). Though Henry’s
crimes occurred prior to the effective date of the legislation, its remedial aspects
were judicially extended to him. See Horsley v. State, 160 So. 3d 393 (Fla. 2015).
Kelsey requests the same relief afforded to Henry, but we may do so only if
his forty-five year prison term is a de facto life sentence in violation of Graham,
which it is not under our Court’s precedents. See Abrakata v. State, 168 So. 3d
251, 252 (Fla. 1st DCA 2015) (“absent a violation of Graham, there is no legal
basis to retroactively apply section 921.1402 (or any other provision of the juvenile
sentencing legislation enacted in 2014) to the 2011 offense in this case.”); Lambert
v. State, 170 So. 3d 74, 76 (Fla. 1st DCA 2015) (“Here, unlike the sentences in
Henry (90 years) and Gridine (70 years), the 15–year sentence Lambert received
on count 2 does not amount to anything close to a de facto life sentence.”).
Because the concurrent resentences at issue in this case do not violate Graham, we
are constrained to deny relief.
We note that our supreme court recently quashed this Court’s decision in
Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014), review granted, decision
quashed, 40 Fla. L. Weekly S479f (Fla. Sept. 4, 2015), a case involving a homicide
3
offense. Thomas was convicted of armed robbery and first-degree murder and
sentenced to mandatory life term without parole, but was resentenced in light of
Miller v. Alabama, 132 S. Ct. 2455 (2012) to concurrent thirty- and forty-year
sentences. This Court upheld those resentences, but the supreme court “remanded
for resentencing in conformity with the framework established in chapter 2014–
220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and
921.1402 of the Florida Statutes. See Horsley v. State, 160 So. 3d 393, 395 (Fla.
2015).” Thomas, 40 Fla. L. Weekly S479f. In effect, the supreme court appears to
require that any juvenile initially sentenced to mandatory life without parole for a
homicide in violation of Miller be sentenced under the new framework regardless
of what resentence may have been imposed in the interim.
But this is a Graham case, not a Miller case; Kelsey’s crimes were
nonhomicides for which a range of lawful punishments was available. As to
Graham defendants, the supreme court has required re-resentencing only where the
initial resentence is life or de facto life, as in Henry (ninety years) and Gridine v.
State, 40 Fla. L. Weekly S149 (Fla. Mar. 19, 2015) (seventy years). For example,
in Henry because the supreme court “determined that Henry’s sentence is
unconstitutional under Graham, we conclude that Henry should be resentenced in
light of the new juvenile sentencing legislation enacted by the Florida Legislature
in 2014, ch.2014–220, Laws of Fla.” 40 Fla. L. Weekly S147 (citing Horsley)
4
(emphasis added). Unlike Miller cases for which no valid remedy on resentencing
was available until the recent legislation, a wide range of valid term of years
sentences are available for juvenile’s whose original sentences were
unconstitutional under Graham. If those resentences themselves violate Graham by
providing no meaningful opportunity for release (as in Henry and Gridine), the
supreme court requires resort to the 2014 legislative remedies. But the supreme
court has not yet held that all resentencings and re-resentencings under Graham
must also comply with the recent legislation. Our precedents have not held that a
forty-five year sentence for a nonhomicide is a de facto life term to which Graham
applies; nor has our supreme court. We are thereby constrained to affirm in this
case, but recognizing the need for clarity on this category of Graham cases certify
the following question as one of great public importance:
Whether a defendant whose initial sentence for a nonhomicide crime
violates Graham v. Florida, and who is resentenced to concurrent
forty-five year terms, is entitled to a new resentencing under the
framework established in chapter 2014–220, Laws of Florida?
AFFIRMED.
MAKAR, J., CONCURS; WINOKUR, J., CONCURS WITH OPINION;
BENTON, J., CONCURS IN CERTIFIED QUESTION BUT DISSENTS ON
MERITS WITH OPINION.
5
WINOKUR, J., concurring.
I concur in the majority opinion. I write separately because I see no
compelling reason to overturn five years of constitutional,2 legally-authorized
resentences imposed following Graham v. Florida, 560 U.S. 48 (2010). That would
be the result if Kelsey prevailed in this appeal.
While Kelsey’s original sentence violated Graham, rather than Miller v.
Alabama, 132 S. Ct. 2455 (2012), Miller is the starting point of this analysis.
Miller prohibits a mandatory life without parole sentence for an offense committed
by a juvenile. Miller presented a significant difficulty in Florida because, as the
majority opinion notes, no valid remedy on resentencing was available. The
Florida Supreme Court resolved the matter in Horsley v. State, 160 So. 3d 393
(Fla. 2015). Under the “unique” (a term the Court used four times) circumstances
presented by offenders whose sentences were unconstitutional but had no legal
resentencing alternatives available, the Court ordered the extraordinary remedy of
retroactive application of a new sentencing law, despite that law’s terms limiting
its application to offenses “committed on or after July 1, 2014.” Ch. 2014-220, §§
2, 3, at 2872-73, Laws of Fla. (codified at §§ 921.1401(1); 921.1402(1), Fla. Stat.
2
I am presuming that Kelsey’s 45-year sentence is constitutional under
Graham. My opinion addresses the issue of whether Kelsey is entitled to a second
resentencing pursuant to the 2014 sentencing statute because his original sentence
violated Graham.
6
(2014)). In reaching this conclusion, the Court rejected the argument that this
remedy violated Article X, section 9 of the Florida Constitution, the so-called
“Savings Clause,” (generally prohibiting the retroactive application of a sentencing
law), because “in this unique context” where the sentencing statute itself is
unconstitutional, “the requirements of the federal constitution must trump those of
our state constitution.” Horsley, 160 So. 3d at 406.
Thomas v. State, 40 Fla. L. Weekly S479f (Fla. Sept. 4, 2015), a case on
which the dissent heavily relies, involved an offender whose life sentence violated
Miller. The trial court resentenced Thomas to concurrent 40- and 30-year terms of
imprisonment, which this Court affirmed prior to the Horsley decision. Thomas v.
State, 135 So. 3d 590 (Fla. 1st DCA 2014). In a two-sentence unpublished order,
the Supreme Court quashed this Court’s decision and ordered resentencing “in
conformance with the framework established in chapter 2014–220, Laws of
Florida,” consistent with its opinion in Horsley. Thomas, 40 Fla. L. Weekly at
S479.
In my view the Thomas order only recognizes that the 40-year resentence
was impermissible. The sentencing court could not simply choose a sentence
without statutory authority in an effort to comply with Miller. 3 Because the
3
The Supreme Court said as much in Horsley, ruling that such sentences
“ignore the primary role of the Legislature in criminal sentencing by crafting a
remedy without a statutory basis.” Horsley, 160 So. 3d at 405.
7
Supreme Court had already ruled in Horsley that the proper resolution was
retroactive application of the 2014 sentencing law, the defendant in Thomas was
entitled to that remedy.
Kelsey’s resentence, in contrast to Thomas’s, was both constitutional and
statutorily authorized. 4 Retroactive application of the 2014 law to Kelsey would
mean that every Graham defendant who has been resentenced since Graham was
decided in 2010 gets a second resentencing, even though the first resentence was
consistent with Graham and applicable sentencing statutes. Given the “unique
circumstances” occasioning the retroactive application of the 2014 law in Horsley,
I do not believe that the Supreme Court meant to disrupt the finality of legal
sentences imposed years earlier by applying a later-enacted law to them.
I recognize that the Supreme Court in Henry v. State, 40 Fla. L. Weekly
S147, S149 (Fla. Mar. 19, 2015), ruled that Henry, a Graham defendant, should be
resentenced under the 2014 law, even though the “unique circumstances” present
with Miller defendants do not seem to be present with Graham defendants. See
also Gridine v. State, 40 Fla. L. Weekly S149 (Fla. Mar. 19, 2015) (holding that
Graham prohibits a 70-year sentence for a juvenile nonhomicide offender). In my
4
Sexual battery is a life felony, punishable by a term of imprisonment for
life or by imprisonment for a term of years not exceeding life imprisonment. §§
794.011(3); 775.082(3)(a)3., Fla. Stat. (2002). Armed robbery, and armed burglary
with an assault or battery, are first-degree felonies punishable by imprisonment for
a term of years not exceeding life imprisonment. §§ 812.13(2)(a); 810.02(2)(a) &
(b); 775.082(3)(b), Fla. Stat. (2002).
8
view Henry does not apply to Kelsey because Henry’s 90-year sentence (as well as
Gridine’s 70-year sentence) violated the Eighth Amendment pursuant to Graham.
While Kelsey’s original sentence violated Graham, his current sentence does not.
C.f. Horsley, 130 So. 3d at 394 n. 1, 397 (noting that the issue presented there was
the proper remedy for sentences that are “now unconstitutional” under Miller
(emphasis added)). As stated above, no compelling reason exists to overturn
Kelsey’s constitutional, statutorily-authorized resentence. I would limit the Henry
remedy to defendants whose current sentences violate Graham, which generally
means any sentence that is so long that it does not afford the offender an
“opportunity for release based on demonstrated maturity and rehabilitation during
his or her natural life.” Henry, 40 Fla. L. Weekly at S149. Any other interpretation
unnecessarily erodes the finality of sentences that were legally imposed and in
compliance with Graham.
In summary, I find that neither Henry nor Thomas supports resentencing
here. Henry was permitted resentencing under the 2014 law because his sentence
was unconstitutional. Thomas was permitted resentencing under the 2014 law not
because his first resentence was unconstitutional, but because it was not statutorily
authorized. Because Kelsey’s resentence is both constitutional and statutorily
authorized, neither case applies and he is not entitled to a second resentencing.
Accordingly, I concur in the majority opinion.
9
BENTON, J., dissenting.
I respectfully dissent on the merits of the appeal. Under controlling
precedent, the appellant is entitled to be “resentenced in light of the new juvenile
sentencing legislation enacted by the Florida Legislature in 2014, ch. 2014-220,
Laws of Fla.” Henry v. State, 40 Fla. L. Weekly S147, S149 (Fla. Mar. 19, 2015),
reh’g denied, No. SC12-578 (Fla. Sept. 24, 2015). I concur in certifying the
question posed in the majority opinion.
The appellant was sentenced in 2010 to life in prison without parole for
nonhomicide offenses he committed as a juvenile in 2002. These sentences
violated the prohibition later handed down in Graham v. Florida, 560 U.S. 48, 82
(2010), against “the imposition of a life without parole sentence on a juvenile
offender who did not commit homicide.” After the original sentences were
vacated, appellant was resentenced in 2014 to concurrent 45-year sentences. The
resentencing that took place in the wake of Graham, while not the equivalent of life
in prison, did not conform to the new juvenile sentencing legislation. 5
5
In affirming Kelsey’s sentences, the majority opinion cites Abrakata v.
State, 168 So. 3d 251 (Fla. 1st DCA 2015), and Lambert v. State, 170 So. 3d 74
(Fla. 1st DCA 2015), both of which are distinguishable: Neither involved a
violation of Graham v. Florida, 560 U.S. 48 (2010). In Abrakata, the juvenile
defendant was convicted of attempted second-degree murder with a firearm (a
first-degree felony), and sentenced to twenty-five years in prison with a twenty-
five-year mandatory minimum. 168 So. 3d at 251, 251 n.1. On appeal to this court,
10
The appellant now seeks either resentencing under section 921.1402, Florida
Statutes (2014), or judicial abolition of parole ineligibility. He maintains we
“should invalidate either the statutory provisions that prohibit parole and require
offenders to serve 85 percent of their sentences, or the provision in the new
sentence review law for juveniles making review available only for offenses
committed on or after July 1, 2014.” Under Henry, he is entitled to resentencing
under section 921.1402, Florida Statutes, enacted last year, ch. 2014-220, Laws of
Fla., § 3, but not to the invalidation of the statutory provisions he seeks in the
Abrakata argued he was entitled “to a review of his sentence after 15 years under
section 921.1402(2)(c), Florida Statutes.” Id. at 251. This court rejected Abrakata’s
argument, reasoning, “absent a violation of Graham, there is no legal basis to
retroactively apply section 921.1402 (or any other provision of the juvenile
sentencing legislation enacted in 2014) to the 2011 offense in this case.” Id. at
252. In the present case, Kelsey’s initial sentence was plainly a violation of
Graham.
In Lambert, which was briefed before Henry v. State, 40 Fla. L. Weekly
S147 (Fla. Mar. 19, 2015), was decided, the juvenile defendant argued that his
fifteen-year sentence for aggravated fleeing or attempting to elude “should be
amended to reflect that he [wa]s entitled to parole eligibility pursuant to the
reasoning in Graham and Judge Padovano’s concurring opinion in Smith v. State,
93 So. 3d 371 (Fla. 1st DCA 2012).” 170 So. 3d at 75. This court rejected that
argument, stating: “We do not read Henry or Gridine[ v. State, 40 Fla. L. Weekly
S149 (Fla. Mar. 19, 2015),] to require that all juveniles convicted of nonhomicide
crimes must be given an opportunity for early release by parole or its equivalent
from their term-of-years sentences.” Id. at 76. We concluded, moreover, Lambert’s
fifteen-year sentence afforded him “a meaningful opportunity for release during his
natural life,” because it did “not amount to anything close to a de facto life
sentence.” Id. Whether Henry applies to sentences for offenses committed before
July 1, 2014, that are not resentences required under (Miller v. Alabama, 132 S. Ct.
2455 (2012), or) Graham is not before us.
11
alternative.
We did not originally “read Henry or Gridine[ v. State, 40 Fla. L. Weekly
S149 (Fla. Mar. 19, 2015),] to require that all juveniles convicted of nonhomicide
crimes must be given an opportunity for early release by parole or its equivalent
from their term-of-years sentences. Rather, we read those cases to simply hold that
juvenile offenders convicted of nonhomicide crimes cannot be sentenced to an
individual or aggregate term-of-years sentence that amounts to a de facto life
sentence that does not afford the offender a meaningful opportunity for release
during his or her natural life.” Lambert v. State, 170 So. 3d 74, 76 (Fla. 1st DCA
2015).
But it is now clear that so-called Graham cases are to be treated just like
cases revisited under Miller v. Alabama, 132 S. Ct. 2455 (2012), and that an initial
resentencing that, even though not a life sentence (or the equivalent) itself, does
not conform to the requirements of Henry and section 921.1402 must be set aside
and reimposed “in light of the new juvenile sentencing legislation.” Henry, 40 Fla.
L. Weekly at S149; see Thomas v. State, 40 Fla. L. Weekly S479, S479 (Fla. Sept.
4, 2015) (requiring a second resentencing “in conformance with the framework
established in chapter 2014-220, Laws of Florida”).
In Horsley v. State, 160 So. 3d 393, 405 (Fla. 2015), the Florida Supreme
Court had to fashion appropriate relief for “juvenile offenders whose sentences are
12
unconstitutional under Miller.” See Miller, 132 S. Ct. at 2469 (holding “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders”). In the aftermath of Miller, the trial
court had resentenced Horsley to life without parole, albeit after individualized
consideration. Horsley, 160 So. 3d at 396–97. On direct review of his
resentencing, our supreme court concluded that chapter 2014-220, Laws of Florida,
(now codified as sections 775.082, 921.1401, and 921.1402 of the Florida Statutes)
should be applied to Horsley (and “all juvenile offenders whose sentences are
unconstitutional under Miller”) even though Horsley’s offense was committed
prior to the effective date of the new juvenile sentencing legislation. Id. at 405,
408 (saying “the Legislature has now provided that all juvenile offenders must
receive individualized consideration before the imposition of a life sentence and
that most juvenile offenders are eligible for a subsequent judicial review of their
sentences”).
On the same day Horsley was decided, our supreme court held that the new
juvenile sentencing legislation also applies to nonhomicide offenders whose
sentences are unconstitutional under Graham. See Henry, 40 Fla. L. Weekly at
S149 (citing Horsley); see also Gridine, 40 Fla. L. Weekly at S151 (remanding “to
the sentencing court to conduct proceedings in accordance with Henry” where
juvenile nonhomicide offender originally received a seventy-year prison sentence).
13
Henry was a juvenile who had been convicted of multiple nonhomicide offenses
for which he was originally sentenced to life plus sixty years’ imprisonment.
Henry, 40 Fla. L. Weekly at S148. He was resentenced in the wake of Graham,
and received an aggregate sentence of ninety years’ imprisonment. Id.
The Florida Supreme Court ruled that Henry’s ninety-year sentence was
unconstitutional under Graham, not because the resentencing was a life sentence
equivalent, but because it did not “afford any ‘meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation’” during his natural life.
Id. at S149 (quoting Graham, 560 U.S. at 75). The Henry court stated:
We conclude that Graham prohibits the state trial
courts from sentencing juvenile nonhomicide offenders
to prison terms that ensure these offenders will be
imprisoned without obtaining a meaningful opportunity
to obtain future early release during their natural lives
based on their demonstrated maturity and rehabilitation.
In light of the United States Supreme Court’s long-
held and consistent view that juveniles are different—
with 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. Thus, we believe that the
Graham Court had no intention of limiting its new
categorical rule to sentences denominated under the
exclusive term of “life in prison.” Instead, we have
determined that Graham applies to ensure that juvenile
nonhomicide offenders will not be sentenced to terms of
imprisonment without affording them a meaningful
14
opportunity for early release based on a demonstration of
maturity and rehabilitation. See Graham, 560 U.S. at 75.
In light of Graham, and other Supreme Court
precedent, we conclude that the Eighth Amendment will
not tolerate prison sentences that lack a review
mechanism for evaluating this special class of offenders
for demonstrable maturity and reform in the future
because any term of imprisonment for a juvenile is
qualitatively different than a comparable period of
incarceration is for an adult. See id. at 70–71 . . . .
Id. (emphasis added). Just as in the present case, Henry’s original sentence did not
comply with the dictates of Graham. Just as the supreme court ordered Henry to
be resentenced under chapter 2014-220, Laws of Florida, id., an intervening
resentencing notwithstanding, we should order resentencing in the present case
under section 921.1402(2)(d) (as the same provision is now codified). The
supreme court’s decision in Thomas makes clear that the length of Henry’s initial
resentencing is not controlling.
As the majority and concurring opinions note, the Florida Supreme Court
recently quashed our decision in Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA
2014), and remanded for a second resentencing “in conformance with the
framework established in chapter 2014-220, Laws of Florida.” Thomas, 40 Fla. L.
Weekly at S479. This was despite the fact that Thomas, who was a juvenile
convicted of first-degree murder and initially sentenced to mandatory life without
parole, had already been resentenced in the wake of Miller to concurrent thirty-
15
and forty-year sentences. See Thomas, 135 So. 3d at 590. Our supreme court
ruled that Thomas was entitled to be resentenced under the new juvenile
sentencing legislation, even though the sentences he received on resentencing were
not themselves life sentences or the equivalent. Kelsey’s situation is
indistinguishable from Thomas’s in this regard.
The majority opinion makes much of the fact the concurrent forty-five-year
sentences Kelsey received for nonhomicide offenses on resentencing are not the
life sentences that Graham condemned. 6 Even so, appellant is entitled to a review
of his concurrent forty-five-year sentences pursuant to section 921.1402(2)(d),
Florida Statues, which provides:
A juvenile offender sentenced to a term of 20 years
or more under s. 775.082(3)(c) [applicable to a juvenile
convicted of an offense that is not under the murder
statute but is “a life felony or is punishable by a term of
imprisonment for life or by a term of years not exceeding
6
The majority opinion contends that Thomas v. State, 40 Fla. L. Weekly
S479 (Fla. Sept. 4, 2015), is distinguishable from the present case because Thomas
is a Miller case “for which no valid remedy on resentencing was available until the
recent legislation.” Ante at 5. Because “Kelsey’s crimes were nonhomicides for
which a range of lawful punishments was available,” ante at 4, the majority
opinion maintains that, in his and other Graham cases, a second resentencing is not
required unless the first resentencing results in the imposition of a life or de facto
life sentence. This overlooks the fact that the Florida Supreme Court rejected such
a distinction between Miller and Graham cases in Henry, where it ruled the new
juvenile sentencing legislation applied to juvenile nonhomicide offenders, even
though “a wide range of valid term of years sentences [we]re available for
juvenile[s] whose original sentence[s] were unconstitutional under Graham.” Ante
at 5. Under the majority opinion’s view, juvenile homicide offenders would be
treated more favorably than juvenile nonhomicide offenders.
16
life imprisonment” (or an offense reclassified as such)] is
entitled to a review of his or her sentence after 20 years.
If the juvenile offender is not resentenced at the initial
review hearing, he or she is eligible for one subsequent
review hearing 10 years after the initial review hearing.
See § 775.082(3)(c), Fla. Stat. (2014). In Horsley, our supreme court explained:
[J]uvenile offenders sentenced to a term of imprisonment
of more than twenty years for a nonhomicide offense are
entitled to a subsequent judicial review of their sentences.
Ch. 2014-220, §§ 1, 3, Laws of Fla. [codified at sections
775.082 and 921.1402, Fla. Stat.] This class of
nonhomicide offenders is also eligible for “one
subsequent review hearing 10 years after the initial
review hearing,” if the juvenile nonhomicide offender is
not resentenced at the initial review hearing. Ch. 2014-
220, § 3, Laws of Fla. [codified at section 921.1402, Fla.
Stat.] This is the only class of juvenile offenders entitled
to more than one subsequent sentence review.
160 So. 3d at 404–05. Under Henry, Kelsey is entitled to a review of his
concurrent forty-five-year sentences after twenty years of incarceration (and to a
second review hearing in another ten years should he not be resentenced at the
initial hearing). See § 921.1402(2)(d), Fla. Stat.
Accordingly, I would reverse Kelsey’s sentences and remand for
resentencing, “in conformance with the framework established in chapter 2014-
220, Laws of Florida,” Thomas, 40 Fla. L. Weekly at S479, while joining the
majority opinion as to the certified question.
17