From Casetext: Smarter Legal Research

Abrakata v. State

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
Jun 18, 2015
168 So. 3d 251 (Fla. Dist. Ct. App. 2015)

Summary

finding that a juvenile's 25–year sentence, day-for-day, does not amount to a de facto life without parole sentence since the defendant will be in his early forties when he is released from prison and declining to retroactively apply the sentencing provisions of chapter 2014–220, Laws of Florida

Summary of this case from Andrevil v. State

Opinion

No. 1D12–2983.

2015-06-18

Edema ABRAKATA, Appellant, v. STATE of Florida, Appellee.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Pamela Jo Bondi , Attorney General, and Joshua R. Heller , Assistant Attorney General, Tallahassee, for Appellee.



Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.

Appellant was convicted of attempted second-degree murder and sentenced to 25 years in prison, with a 25–year mandatory minimum term, followed by five years of probation. Appellant committed this offense in 2011 when he was 17 years old.

Attempted second-degree murder is a second-degree felony, see§§ 782.04(2), 777.04(4)(c), Fla. Stat., but the offense was enhanced to a first-degree felony in this case based on the jury's finding that Appellant actually possessed a firearm during the commission of the offense. See§ 775.087(1)(b), Fla. Stat. The mandatory minimum term was imposed based on the jury's finding that Appellant discharged a firearm during the commission of the offense causing great bodily harm. See§ 775.087(2)(a) 3., Fla. Stat.

Appellant raises three issues in this direct appeal. First, he contends that his judgment and sentence should be amended to reflect that he is entitled to a review of his sentence after 15 years under section 921.1402(2)(c), Florida Statutes (2014). Second, he contends that the 25–year mandatory minimum term should be vacated because it violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Third, he contends that the trial court erred in imposing several costs.

We affirm the second issue because even though the mandatory minimumterm will require Appellant to serve his 25–year sentence day-for-day, the sentence does not amount to a de facto life without parole sentence since Appellant will be in his early forties when he is released from prison. See Lambert v. State, 170 So.3d 74, 2015 WL 3541914, 40 Fla. L. Weekly D1347 (Fla. 1st DCA June 8, 2015) (on motion for clarification) (rejecting argument that juvenile's 15–year sentence violates Graham because he will be in his late twenties or early thirties when he is released from prison); Austin v. State, 127 So.3d 1286 (Fla. 1st DCA 2013) (affirming juvenile's 45–year mandatory minimum term because it did not exceed his life expectancy); Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011) (affirming juvenile's 50–year sentence with a 25–year mandatory minimum term because the sentence does not amount to a life without parole sentence even though the juvenile will be in his late sixties when he is released from prison).

We address the second issue first because resolution of the first issue depends on the resolution of the second issue.

We affirm the first issue because, 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. Cf. Henry v. State, ––– So.3d ––––, 2015 WL 1239696, 40 Fla. L. Weekly S147 (Fla. Mar. 19, 2015) (remanding for resentencing in light of the juvenile sentencing legislation adopted in 2014 because the court determined that the 90–year sentence in that case “is unconstitutional under Graham ”).

With respect to the third issue, we accept the State's confession of error and reverse the imposition of the $195.24 fine and $9.76 surcharge imposed pursuant to sections 775.083(1) and 938.04, Florida Statutes (2010), because those amounts were not orally pronounced by the trial court at the sentencing hearing. See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). On remand, the trial court may reimpose the fine and surcharge after following the proper procedure. Id.

We affirm the other costs challenged by Appellant without further comment.

AFFIRMED in part; REVERSED and REMANDED in part.

WOLF, WETHERELL, and BILBREY, JJ., concur.


Summaries of

Abrakata v. State

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
Jun 18, 2015
168 So. 3d 251 (Fla. Dist. Ct. App. 2015)

finding that a juvenile's 25–year sentence, day-for-day, does not amount to a de facto life without parole sentence since the defendant will be in his early forties when he is released from prison and declining to retroactively apply the sentencing provisions of chapter 2014–220, Laws of Florida

Summary of this case from Andrevil v. State

rejecting Graham challenge because "Appellant will be in his early forties when he is released from prison"

Summary of this case from McCrae v. State

In Abrakata v. State, 168 So.3d 251 (Fla. 1st DCA 2015), a juvenile offender who received a 25–year sentence for nonhomicide offenses argued that his sentence violated Graham and that he was entitled to review under section 921.1402(2)(c).

Summary of this case from Hart v. State

In Abrakata v. State, 168 So.3d 251 (Fla. 1st DCA 2015), petition for discretionary review pending, No. SC15–1325 (Fla.2015), the court held that a 25–year mandatory minimum sentence was not a de facto life sentence without parole in violation of Graham.

Summary of this case from Davis v. State

noting that "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"

Summary of this case from Francis v. State

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.

Summary of this case from Kelsey v. State

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.

Summary of this case from Kelsey v. State
Case details for

Abrakata v. State

Case Details

Full title:EDEMA ABRAKATA, Appellant, v. STATE OF FLORIDA, Appellee.

Court:DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

Date published: Jun 18, 2015

Citations

168 So. 3d 251 (Fla. Dist. Ct. App. 2015)

Citing Cases

McCrae v. State

Indeed, McCrae will still be in his forties when released. See, e.g.,Davis v. State , 214 So.3d 799 (Fla. 1st…

Montgomery v. State

See Kelsey, 206 So.3d at 11 (holding Graham required judicial review hearings for juvenile offenders who are…