Opinion
No. 1D20-2417
05-25-2022
Rebecca Lee FALCON, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Roberts, J.
The appellant was sentenced to life in prison without the possibility of parole for a murder she committed while she was a juvenile. This sentence was reversed by the Florida Supreme Court pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and remanded for resentencing under section 941.1401, Florida Statutes. Falcon v. State , 162 So. 3d 954 (Fla. 2015). The trial court conducted a new sentencing hearing and again sentenced the appellant to life in prison. She claims that the trial court's factual findings are not supported by competent, substantial evidence. She also claims that the trial court abused its discretion by imposing a life sentence. We disagree and affirm.
Trial
When the appellant was fifteen years of age, she was sent to live with her grandparents. While she was living with her grandparents, she attended high school and became friends with Bruce Johnson who was also fifteen years old. Johnson testified that after he became friends with the appellant, she mentioned wanting to rob someone a couple of times. At some point in time, after talking about wanting to rob someone, Mr. Johnson introduced the appellant to his cousin, Cliffton Gilchrist, who ultimately became her codefendant. Once the appellant and Gilchrist were introduced, the discussions about robbing someone increased.
On the evening of November 18, 1997, a little over a month before the appellant turned sixteen, Johnson and Gilchrist were hanging out at a friend's house playing cards. During that time, Johnson received a phone call from the appellant. The appellant asked Johnson to speak with Gilchrist. Johnson gave Gilchrist his cell phone, and Gilchrist went into another room to speak with the appellant. After getting off the phone with the appellant, Gilchrist and Johnson rode their bikes back to Gilchrist's home. While they were at Gilchrist's home, Gilchrist retrieved his firearm. Johnson and Gilchrist then walked to the appellant's home. At some point, the three of them walked to Gilchrist's home. During this walk, Gilchrist gave the appellant his firearm, which she held onto. After reaching Gilchrist's home, the appellant test fired the firearm. Later, the three of them decided to walk the railroad tracks toward a convenient store. While they were walking, the appellant shot the firearm again. During the walk, the appellant stated that she wanted to shoot someone in the back of the head. Gilchrist agreed to her plan, but wanted to rob the person as well.
When the trio reached the convenience store, they saw an older woman stopped at a stop sign. The appellant suggested robbing her, throwing her in the trunk of her car, and then driving her car around. However, the older woman drove off. Later, a taxicab drove by. The appellant flagged down the taxicab. Right before the taxicab stopped, the appellant and Gilchrist were discussing where they should tell the taxicab driver to take them. The appellant suggested one location, which ultimately was the taxicab's final destination, because that location was dark and no one would be able to see them. Gilchrist suggested a different location. When the taxicab driver stopped, they sent it on its way because Gilchrist decided not to go with the appellant. When the taxicab drove by a second time, the appellant once again tried to flag it down. However, the taxicab did not stop. There were passengers in the backseat. One of those passengers testified that a female attempted to flag down the taxicab. When the taxicab drove past a third time, the appellant successfully flagged it down. She got in behind the taxicab driver, and Gilchrist got in on the rear passenger's side. The appellant was carrying the firearm with her, and Gilchrist had a BB gun. Johnson did not get in the taxicab and abandoned the plan to murder and rob, stating that he "was not crazy."
The next day, Johnson saw the appellant at school. The appellant told him she shot the taxicab driver and had no regrets. She also told him that it was the taxicab driver's fault that he got shot. When Johnson hung out with the appellant and Gilchrist later that day, the appellant and Gilchrist talked about how the appellant shot the taxicab driver in the back of the head. The appellant and Gilchrist laughed and made fun of the sound the taxicab driver made after he had been shot. After the taxicab driver was shot, he slumped over the steering wheel, his foot hit the gas, and the taxicab hit the guardrail. After the taxicab hit the guardrail, Gilchrist got scared and ran. The appellant walked away down the dirt road. These accounts of the events were consistent with the physical evidence.
While the appellant was walking down the road, a car passed her, so she put on her hood because she did not want the person in the car to see her. The person in the car testified that she appeared to slow down her pace as he approached and sped up after he passed. After describing the events that took place after she got into the taxicab, the appellant told Johnson that she wanted to make a rap song out of the crimes and describe how she killed the taxicab driver.
Sometime later, the appellant showed Johnson a sketch of a female in the newspaper. She said it was supposed to be her and she needed to get a different hairdo because the person in the sketch had her hairdo.
The medical examiner testified that the taxicab driver had been shot in the back of his head on the left side. The bullet traveled through his brain and lodged in the frontal lobe on the right side of his brain. Based on the bullet trajectory, it was possible the taxicab driver could have been looking straight ahead or to the left when he was shot at point-blank range.
While the appellant was in the juvenile detention center, two different people testified that they overheard the appellant on separate occasions telling people that she shot a taxicab driver. One of them also heard the appellant say that it was not exactly like it sounded.
The jury found the appellant guilty of first-degree murder and attempted armed robbery with a firearm under the principal theory. The jury did not find that the appellant possessed the firearm at the time of the robbery. The jury was not asked to determine whether the appellant was guilty of premeditated or felony murder or whether she possessed the firearm at the time of the murder.
Procedural History
After the trial, the trial court sentenced the appellant to life in prison without parole. This Court affirmed her convictions and sentences. Falcon v. State , 781 So. 2d 1086 (Fla. 1st DCA 2001).
In June of 2012, the United States Supreme Court issued its decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), in which it determined that a mandatory life sentence without the possibility of parole when imposed on a juvenile defendant violated the United States Constitution. Id. at 465, 132 S.Ct. 2455. However, the Miller court did not state that its decision applied retroactively or that a life sentence with the possibility of parole could not be imposed.
Shortly after Miller was decided, the appellant sought resentencing through a motion for postconviction relief based on Miller . The trial court denied the appellant's motion, and this Court affirmed based on its prior precedent holding that Miller did not apply retroactively. Falcon v. State , 111 So. 3d 973, 973–74 (Fla. 1st DCA 2013). This Court certified the question of whether Miller applied retroactively to the Florida Supreme Court. Id. at 974.
The Florida Supreme Court took up the issue and held that Miller applied retroactively and required the trial court to hold an individualized sentencing hearing for the appellant. Falcon v. State , 162 So. 3d 954, 956–63 (Fla. 2015). It instructed the trial court to determine whether the appellant actually killed, intended to kill, or attempted to kill the taxicab driver and to apply the pertinent factors contained in section two of chapter 2014-220, Laws of Florida. Falcon , 162 So. 3d at 963. The sentencing procedures contained in chapter 2014-220 had been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).
The Florida Supreme Court made many statements concerning the way it viewed the facts of this case, but acknowledged that those facts were not necessary to decide the issue on appeal. Falcon , 162 So. 3d at 963 n.3. As such, those statements are dicta and have no preclusive effect on the trial court for resentencing. See Pedroza v. State , 291 So. 3d 541, 547 (Fla. 2020) (statements of law that are not part of the holding is dictum).
Because the law was evolving and the parties engaged in plea negotiations that were ultimately unsuccessful, the appellant's resentencing hearing was delayed until March of 2020. The hearing took place over the span of two days. The trial court allowed the parties to submit written closing arguments, and at a later date, the trial court allowed the parties to return and provide further arguments. Prior to sentencing, the appellant requested to read a letter she had written. After she was done, the trial court pronounced its sentence of life in prison with a sentencing review after fifteen years. It also rendered a written order the following day discussing how it weighed each of the factors under section 921.1401(2).
Law
Section 921.1401(2) provides ten factors the trial court must consider if it is considering imposing a life sentence. The first nine factors listed in paragraphs (a) through (i) look at the details of the crime and the juvenile as they were when the juvenile committed the crime. The tenth factor in paragraph (j) tries to predict the future by determining the possibility of rehabilitating the juvenile. Thus, a resentencing judge goes back in time and analyzes the factors as if the trial had just occurred.
Unlike section 921.1401, section 921.1402 provides the procedures and factors the trial court must consider upon a review, which takes place after the initial sentencing. Section 921.1402 focuses on what the juvenile has done since she committed the crime and how she has changed. A judge conducting a review hearing has far more latitude than the sentencing judge because the reviewing judge's focus is on the progress the person has made since being imprisoned.
Since the appellant came before the trial court for a resentencing, it was required to look at the facts as they existed when the appellant committed the crime. In doing so, the trial court had to consider the sentencing factors contained in section 921.1201(2). We review each factor in detail below.
When reviewing a trial court's sentencing decision, the appellate court reviews a trial court's findings of fact for competent, substantial evidence and the trial court's sentencing decision for abuse of discretion. Jackson v. State , 276 So. 3d 73, 75 (Fla. 1st DCA 2019).
Analysis
Section 921.1401(2)(a) requires the trial court to consider "[t]he nature and circumstances of the offense committed by the defendant." The appellant argues that the trial court improperly determined that she was the shooter. Because the jury was instructed on felony murder and premediated first-degree murder and was not asked to determine whether she was the shooter, the trial court had to determine whether a reasonable jury would have found the appellant killed, intended to kill, or attempted to kill the taxicab driver beyond a reasonable doubt. Williams v. State , 242 So. 3d 280, 290 (Fla. 2018).
The record from the appellant's trial supports the trial court's conclusion that she killed the taxicab driver. The facts at trial showed that the appellant wanted to shoot someone in the back of the head, which is exactly how the taxicab driver was murdered, and that it was Gilchrist who wanted to rob someone. Even though the jury concluded that the appellant did not possess the firearm at the time of the robbery, that did not mean she did not possess the firearm when the taxicab driver was shot. The record showed that the robbery occurred after the shooting.
All of the evidence pointed to the appellant as the driving force behind the events that led to the taxicab driver's death. The appellant is the one who was test-firing the firearm, hailed the taxicab, and dictated the final destination for the murder.
Even the appellant's own witness who testified that the appellant was not sitting directly behind the taxicab driver moments before the taxicab driver was killed did not negate the theory that she shot him. The appellant's witness testified that the appellant was sitting very closely to Gilchrist, so closely that the witness referred to Gilchrist as the appellant's boyfriend. The appellant was closer to Gilchrist's door than she was to the passenger door. Since the medical examiner testified that the taxicab driver could have been looking to his left when he was shot, it was possible for the appellant to have shot him.
The witness's testimony was not supported by the physical evidence. The physical evidence showed that a large footprint was found outside of the passenger side and the footprint was smeared as if the person was running.
The only evidence introduced that would have supported the theory that Gilchrist was the shooter by inference was a statement by Johnson that Gilchrist had stated on one occasion that he was not afraid to shoot someone and the fact that Gilchrist was the owner of the firearm. Because all the other trial evidence supported the theory that the appellant shot the taxicab driver, a reasonable jury would have determined the same.
We now know for a fact that the appellant was the shooter because she admitted to such in her affidavit to support her petition for clemency.
Even if a reasonable jury could not have found the appellant guilty of shooting the taxicab driver beyond a reasonable doubt, there is no evidence that the trial court weighed this factor more heavily to sentence her to life in prison. The appellant's written sentence shows that the trial court sentenced her under section 775.082(1)(b) 2., which is used when sentencing a defendant who has not been found to have killed, intended to kill, or attempted to kill a victim. This shows the trial court was aware that it could not use the fact that the appellant was the shooter as the sole reason for a life sentence. In addition, there is no indication that the trial court weighed this factor more heavily that it did the other six factors it found to weigh heavily against the appellant.
Based on the trial court's sentencing order, it appears that the dominating factor behind the sentence was the finding that the appellant was driving force behind the events that occurred on that night.
Under paragraph (b), the trial court was required to consider "[t]he effect of the crime on the victim's family and on the community." § 921.1041(2)(b), Fla. Stat. (2020). The trial court found that this factor weighed heavily against the appellant. The trial court found that the appellant understood what it meant to lose someone close to her and even though she understood that loss, that she chose to take the taxicab driver's life. Because the appellant's aunt testified about this loss as well as the appellant's attachment to the aunt's family, there is competent, substantial evidence to support the trial court's finding.
Under paragraph (c), the trial court had to consider "[t]he defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense." § 921.1041(2)(c), Fla. Stat. (2020). The trial court found that the appellant's intelligence was apparent from an early age despite her failing grades. This finding of fact is supported by the record. The appellant submitted into evidence an affidavit that her mother had written prior to her death. In that affidavit, her mother stated that when her daughter was 4.5 years’ old, she was able to read, write, and recite Bible passages. Based on this information, it was reasonable for the trial court to infer that the appellant was intelligent early in life. It appears the trial court supported this inference by stating the appellant obtained her general education diploma while she was awaiting trial.
With regards to the trial court's finding that the appellant's mental health had improved, that too is supported by competent, substantial evidence. The grandmother testified that once the appellant came to live with her, she stopped cutting herself and was letting out her emotions. The appellant was well-behaved for her grandmother and went to school without any problems. The appellant had good grades. In the appellant's mother's affidavit, she stated the appellant did not have good grades when she lived with her. Even though the aunt testified that the appellant appeared depressed and sad a month prior to the murder, the aunt was not present daily like the grandmother. In addition, the aunt appeared to be comparing the appellant's emotional and physical state to a much earlier time period. It is the trial court's function to determine witness credibility and the weight to be given to the evidence. Griffin v. State , 114 So. 3d 890, 905 (Fla. 2013). This Court is not tasked with reweighing the facts. Id.
The aunt testified that she did not see the appellant much after she moved away from the area. In the mother's affidavit, it was apparent that the family moved away prior to the appellant starting fifth grade.
Under paragraph (d), the trial court had to consider "[t]he defendant's background, including her family, home, and community environment." § 921.1401(2)(d), Fla. Stat. (2020). The trial court's findings of fact are supported by competent, substantial evidence. While the aunt's testimony may support a finding that the appellant was sad and depressed, there was other testimony that supported a finding that she was not. Therefore, it was the trial court's responsibility to determine which evidence was credible and how to weigh it.
In paragraph (e), the trial court had to consider "[t]he effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense." § 921.1401(2)(e), Fla. Stat. (2020). The trial court's findings are supported by competent, substantial evidence from the trial. The trial court found that the only immature part of the crime was the appellant's drinking and leaving the house the night of the murder. Even though that was a factor, Johnson testified that the appellant had become less drunk as the night went on and that she no longer showed the signs of being drunk by the time she got into the taxicab. Her crime was committed after that time.
In paragraph (f), the trial court had to consider "[t]he extent of the defendant's participation in the offense." § 921.1401(2)(f), Fla. Stat. (2020). As shown previously, the appellant was the person who set all of the events that took place into motion. Thus, there is competent, substantial evidence to support the trial court's findings.
In paragraph (g), the trial court had to consider "[t]he effect, if any, of familial pressure or peer pressure on the defendant's actions." § 921.1401(2)(g), Fla. Stat. (2020). The trial court's findings of fact are supported by competent, substantial evidence from the trial. During the trial, Johnson testified that the appellant is the one who wanted to shoot someone in the back of the head; the reason why they sent the taxicab driver on his way the first time was because Gilchrist did not want to go with her, and she continued to summon the taxicab driver.
In paragraph (h), the trial court had to consider "[t]he nature and extent of the defendant's prior criminal history." § 921.1401(2)(h), Fla. Stat. (2020). The appellant does not argue the trial court's findings under this factor.
In paragraph (i), the trial court had to consider "[t]he effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment." § 921.1401(2)(i), Fla. Stat. (2020). While the trial court compared the appellant's actions to those of Gilchrist and Johnson, it appears it did so to highlight the fact that there was no record evidence of her youthful characteristics playing a factor in the crime. As previously shown, the appellant was the driving force of that night's event. She also took steps to hide her appearance while leaving the scene and discussed further changing her appearance to avoid being caught. As a result, the trial court's finding that there was no record evidence of the appellant's youthful characteristics playing a role in the crime is supported by competent, substantial evidence.
Under paragraph (j), the trial court had to consider "[t]he possibility of rehabilitating the defendant." § 921.1401(2)(j), Fla. Stat. (2020). There is competent, substantial evidence to support many of the trial court's findings regarding the appellant's rehabilitation. The trial court wrote three paragraphs explaining all the things that the appellant had achieved since being in prison. It found that she had demonstrated that the possibility for rehabilitation existed. However, the trial court did not find that the appellant had reached rehabilitation.
The trial court noted that there was little evidence that the appellant had accepted responsibility for her actions and was truly remorseful. This finding is supported by competent, substantial evidence. The record is replete with instances of the appellant failing to state exactly what she had done. When the appellant addressed the trial court right before resentencing, she apologized to those affected by the taxicab driver's death and for the role she played in his death. However, she never said what role she played. Even in her affidavit to the Clemency Board, the appellant stated that she shot the firearm out of fear after the taxicab driver was rapidly turning the wheel and pressing the accelerator. Those statements seemingly placed the blame on the taxicab driver just as she had after the crime took place. Because the appellant continues to minimize her actions and blame the shooting on other things, it is hard to see how she has fully accepted responsibility for her crime and can be truly remorseful for it.
This notion is further confirmed by an affidavit of a psychologist who had examined the appellant prior to trial and before she applied for clemency. The appellant was reported as saying that she panicked and mistakenly shot the taxicab driver out of fear. In that affidavit, the psychologist noted that the appellant took responsibility for becoming intoxicated, which led to the unintended death of the taxicab driver.
The trial court found that the appellant failed to show that she had taken steps to overcome her weaknesses. The trial court provided some examples of her weakness, but it is not clear if the trial court identified those as her weaknesses or whether it was the appellant that identified those as problems that lead to her crime. While it is true that there are not many opportunities to participate in programs in the prison, the appellant had been able to participate in a lot of them. There is a possibility that some of those programs focused on those areas of weakness, but there is no way to know without evidence concerning the teachings from those programs. With regards to the appellant's attendance of A.A. and N.A. classes, the only record evidence that would support such a finding comes from the appellant's affidavit to the Clemency Board. It is possible that this is why the trial court stated there was little if any evidence that the appellant took steps to overcome her weaknesses.
It was the appellant who claimed that the events would not have happened if she had not been intoxicated or needed to be tough. She also noted the number of males who had exploited her and sexually abused her.
We note the many efforts the appellant has made to improve herself and to make amends for the harm she has done. Multiple witnesses came forward to testify on the appellant's behalf. The witnesses testified about the appellant's character. They said she was trustworthy, a woman of character, respectful, and wise. They testified about the time the appellant spent mentoring young woman in prison and how she had become an integral part of many ministries that sought to help reform prisoners. She gave of herself even when she did not have to. Some of the witnesses stated that they had not testified on behalf of a prisoner until the appellant's hearing. All that evidence is more relevant in a review hearing where the focus is on rehabilitation rather than the crime. Since the appellant has spent more than fifteen years in prison, she is entitled to an immediate review. During that hearing, the trial court will have more latitude to focus on the remarkable progress the appellant has made.
Because there is competent, substantial evidence to support the trial court's findings of fact, the trial court did not abuse its discretion in sentencing the appellant to life in prison. Furthermore, it is the trial court's, not this Court's, responsibility to determine how much weight to give each of the factors. Jackson , 276 So. 3d at 76.
AFFIRMED .
Makar, J., concurs in result only with opinion; Bilbrey, J., dissents with opinion.
Makar, J., concurring in result only with opinion.
I concur in the resentencing of Rebecca Lee Falcon to life in prison with a sentencing review after fifteen years because competent substantial evidence existing solely at the time of her original sentencing in 1999 supports such a sentence. Statutory resentencing factors look only to then-existing circumstances. They do not include the wider range of factors related to rehabilitation and demonstrated maturity that are considered in a subsequent sentence review proceeding. The evidentiary record—viewed solely through the lens of what was known in 1999—is far different from the subsequent record showing Falcon's exemplary efforts at remediation of her character; for example, a former warden and eight others who knew her and supervised her work in prison (many having never testified for an inmate before) unreservedly recommended a modification of her sentence. The currently existing overall record presents a persuasive case for relief at the sentence review stage, subject to victim input. The only issue presented in this appeal, however, is the sufficiency of the historical evidence at the time of original sentencing in 1999 and whether it supports the sentence of life in prison with a sentencing review after fifteen years; it does, leaving the remainder of the post-1999 evidentiary record for full consideration at the sentence review stage.
Section 921.1401(2), Florida Statutes, states:
In determining whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances, including, but not limited to:
(a) The nature and circumstances of the offense committed by the defendant.
(b) The effect of the crime on the victim's family and on the community.
(c) The defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
(d) The defendant's background, including his or her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense.
(f) The extent of the defendant's participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant's actions.
(h) The nature and extent of the defendant's prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment.
(j) The possibility of rehabilitating the defendant.
The United States Supreme Court recently reiterated that a sentencing court is not required by the Eighth Amendment to find that a defendant whose offense was committed while a juvenile is "permanently incorrigible" before imposing a sentence of life without parole. Jones v. Mississippi , ––– U.S. ––––, 141 S. Ct. 1307, 209 L.Ed.2d 390 (2021). The Court in Montgomery v. Louisiana had said as much. 577 U.S. 190, 211, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) ("a finding of fact regarding a child's incorrigibility ... is not required"). Even so, the Montgomery Court also held that while Miller did not impose a requirement to find a juvenile offender permanently incorrigible, a state sentencing court is not free "to sentence a child whose crime reflects transient immaturity to life without parole." Id.
Section 921.1402(6)(a)-(i), Florida Statutes, states:
When determining if it is appropriate to modify the juvenile offender's sentence, the court shall consider any factor it deems appropriate, including all of the following:
(a) Whether the juvenile offender demonstrates maturity and rehabilitation.
(b) Whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing.
(c) The opinion of the victim or the victim's next of kin. The absence of the victim or the victim's next of kin from the sentence review hearing may not be a factor in the determination of the court under this section. The court shall permit the victim or victim's next of kin to be heard, in person, in writing, or by electronic means. If the victim or the victim's next of kin chooses not to participate in the hearing, the court may consider previous statements made by the victim or the victim's next of kin during the trial, initial sentencing phase, or subsequent sentencing review hearings.
(d) Whether the juvenile offender was a relatively minor participant in the criminal offense or acted under extreme duress or the domination of another person.
(e) Whether the juvenile offender has shown sincere and sustained remorse for the criminal offense.
(f) Whether the juvenile offender's age, maturity, and psychological development at the time of the offense affected his or her behavior.
(g) Whether the juvenile offender has successfully obtained a high school equivalency diploma or completed another educational, technical, work, vocational, or self-rehabilitation program, if such a program is available.
(h) Whether the juvenile offender was a victim of sexual, physical, or emotional abuse before he or she committed the offense.
(i) The results of any mental health assessment, risk assessment, or evaluation of the juvenile offender as to rehabilitation.
A year later, in 2016, the United States Supreme Court likewise held in Montgomery that its decision in Miller applies retroactively on collateral review. Montgomery , 577 U.S. at 212, 136 S.Ct. 718.
Bilbrey, J., dissenting.
Rebecca Lee Falcon challenges a sentence of life in prison with a sentence review hearing after fifteen years for a murder committed when she was a juvenile. The trial court imposed this sentence after Falcon's initial life without parole sentence was vacated by the Florida Supreme Court and resentencing was ordered. Because competent, substantial evidence does not support certain of the trial court's findings which led to the life sentence and the trial court abused its discretion in reimposing a life sentence, I would vacate the sentence imposed on resentencing and remand the cause for a second resentencing to impose a term-of-years sentence. Since the majority affirms Falcon's sentence, I respectfully dissent.
Factual and Procedural Background
Falcon was fifteen when she and an eighteen-year-old acquaintance entered a taxicab late one November evening in 1997. They directed the driver to a dark road in Bay County intending to rob the driver. The evidence at trial showed that as they drove, either Falcon or her codefendant placed a gun at the back of the driver's head by. A shot was fired by one of them, and a few days later, the driver succumbed to his injury.
A jury convicted Falcon of first-degree murder and as a principal to attempted armed robbery. On the attempted armed robbery charge, the jury declined to find that Falcon actually possessed a firearm. In May 1999, the predecessor judge sentenced Falcon to life without the possibility of parole for the homicide. Such a sentence was then mandatory, even for a juvenile offender. See § 775.082(1), Fla. Stat. (1997). Her convictions and sentences were affirmed by this court on direct appeal. Falcon v. State , 781 So. 2d 1086 (Fla. 1st DCA 2001). Eleven years after we affirmed, the United States Supreme Court issued a watershed decision on juvenile sentencing in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
In Miller , the United States Supreme Court held that a mandatory sentence of life without the possibility of parole for a defendant convicted of homicide, who was a juvenile at the time of the offense, violates the Eighth Amendment of the United States Constitution. Id . at 479, 132 S.Ct. 2455. By this holding, the Court recognized that fundamental characteristics of youth, such as a lack of maturity, a heightened vulnerability to negative influences, and a capacity for change, render juvenile offenders "constitutionally different" from adult offenders and "less deserving of the most severe punishments." Id . at 471–72, 132 S.Ct. 2455.
The Court in Miller did not hold that a juvenile could never be sentenced to life without the possibility of parole. Instead, the Court held that the sentencing court must give the juvenile "individualized consideration." Id . at 480, 132 S.Ct. 2455. It also held that a life without parole sentence would be "uncommon" and reserved for juveniles demonstrating "irreparable corruption." Id . at 479–80, 132 S.Ct. 2455. After all, a sentence of life without parole reflects "an irrevocable judgment about [an offender's] value and place in society," a judgment at odds with a child's capacity for change. Id . at 473, 132 S.Ct. 2455 (quoting Graham v. Florida , 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). That capacity for change is the reason the goal of rehabilitation even exists, yet a life without parole sentence is a "rejection of rehabilitation." Graham , 560 U.S. at 74, 130 S.Ct. 2011.1
On the authority of the then recently decided Miller case, Falcon sought resentencing through a post-conviction proceeding. That effort was denied by the trial court because Florida had not given retroactive effect to Miller . See Gonzalez v. State , 101 So. 3d 886 (Fla. 1st DCA 2012) ; Geter v. State , 115 So. 3d 375 (Fla. 3d DCA 2012). We agreed and upheld the denial of post-conviction relief. Falcon v. State , 111 So. 3d 973 (Fla. 1st DCA 2013). In denying resentencing, we certified a question of great public importance on whether Miller should be given retroactive effect. Falcon, 111 So. 3d at 974.
The Florida Supreme Court took up the certified question. Falcon v. State , 162 So. 3d 954 (Fla. 2015) ( Falcon III ). The Court held that Miller should be applied retroactively, and thus Falcon's mandatory sentence of life without parole was vacated with resentencing ordered. Falcon III , 162 So. 3d at 963–94.2
Falcon was initially sentenced thirteen years before Miller was decided. During much of that interim, Falcon showed "great capacity" for rehabilitation, as the Florida Supreme Court recognized. Falcon III , 162 So. 3d at 963 n.3 (observing Falcon is an individual "who has shown great capacity for remorse and rehabilitation"). In ordering resentencing for Falcon, the Florida Supreme Court wrote:
I agree with the primary opinion that this discussion by the Florida Supreme Court in Falcon III was dicta and not binding on a lower court. But that does not mean the that the Florida Supreme Court was incorrect in summarizing Falcon's remorse and capacity for rehabilitation. Furthermore, as discussed below, at her resentencing Falcon provided evidence of her further rehabilitation in the seven years since Falcon III .
According to an affidavit from a clinical psychologist specializing in adolescent development, who conducted several evaluations and interviews with Falcon in the years after the crime, Falcon's childhood leading up to that point had been traumatic, including having suffered sexual and emotional abuse from her stepfather and continued sexual exploitation from peers at school. By the time of the crime, Falcon asserted that she was experiencing "low self-esteem," had started smoking marijuana, and was "desperate for attention" such that she would "do things just for approval."
On the night of the crime, Falcon reported that her boyfriend, with whom she professed to have fallen in love because he was "the first person who seemed to care for" her, ended their relationship since he was seeing someone else. Hoping to "sleep off her sadness," she consumed alcohol and became intoxicated. Falcon stated that, while drunk, she received an invitation [by fifteen-year-old acquaintance, Bruce Johnson] to sneak out of the house and made an "impulsive" decision to go because she "was still not popular" and wanted "to be accepted."
Asserting that she was trying "to fit in" and act "brave" to mask her "true feelings of insecurity," Falcon "agreed to the idea of a robbery," expecting to "get the money and go" as she claimed she had seen in "the movies." [Bruce Johnson did not participate in the robbery; however, an eighteen-year-old acquaintance, Clifton Gilchrist, did participate.] However, when the robbery did not proceed as expected, she alleged that she "panicked" and, though not "want[ing] to kill someone," ultimately participated in causing the shooting death of the attempted robbery victim.
Id. at 957.
After finding Miller to be retroactive, the Court in Falcon III also stated:
Although the particular facts of Falcon's crime are not directly relevant to the legal issues we address at this time [regarding the retroactivity of Miller ], record evidence suggests that she is exactly the type of juvenile offender the United States Supreme Court was referring to in Miller and its other recent juvenile sentencing cases regarding the "characteristics of youth, and the way they weaken rationales for punishment"—a juvenile with a troubled upbringing, whose offense was influenced by "familial and peer pressures," and who has shown great capacity for remorse and rehabilitation. Miller , 132 S. Ct. at 2465–66, 2468.
Falcon III , 162 So. 3d at 963 n.3.
When the Florida Supreme Court held that Miller applied retroactively to offenders already sentenced to a mandatory term of life without parole for an offense committed while a juvenile, it determined that the appropriate procedure for resentencing such offenders was to apply the procedures set forth in chapter 2014-220, Laws of Florida. Falcon III , 162 So. 3d at 964. The provisions of this chapter law were codified as sections 775.082, 921.1401, and 921.1402, Florida Statutes, as amended. While section 921.1401 is intended to govern initial sentencing proceedings, the Florida Supreme Court has directed trial courts to also use this statutory scheme for the resentencing of juvenile offenders whose sentences were rendered unconstitutional by Miller . See Falcon III , 162 So. 3d at 963.
Under the revised sentencing scheme, a person convicted of a capital homicide offense, but who did not actually kill, intend to kill, or attempt to kill the victim, and who is sentenced to a term of more than fifteen years, is entitled to a review of the sentence after serving fifteen years. See §§ 775.082(1)(b) 2., 921.1402(2)(c), Fla. Stat. (2020). Falcon's sentence on appeal includes a fifteen-year sentence review, citing those statutes.
Resentencing
Five years after the Florida Supreme Court vacated her life sentence, the trial court held Falcon's resentencing hearing. The State called no witnesses, instead introducing exhibits and transcripts from Falcon's trial. Falcon called eight witnesses, most of whom had come to know Falcon while employed by or volunteering at a prison where Falcon was incarcerated.
One notable witness was Loretta Sink, who worked for the Florida Department of Corrections for more than twenty-five years. At the time of her retirement from state employment, which was followed by employment in the private sector, Sink was the warden at Florida Reception Center. Falcon had been transferred to that institution to assist in a pilot program for inmates, the "JOY" program. Then Warden Sink worked closely with Falcon. Sink had never previously testified on behalf of an inmate. When asked why she chose to testify on Falcon's behalf, she responded:
I would just say that her, my interaction with her, her willingness I guess is the only word I can think of, and her selflessness when it came to wanting to give back. You know, you can be in the situation she's in and decide every day to not engage and to not try to better yourself or not try to contribute somewhere, but you know, there are certain folks that just stand out. I have, I had interaction, still do, with offenders every single day, and some of them not good, you know, but I really do feel like that she has taken ownership of everything that she's ever done, and I feel like that she just, regardless of what her long-term situation is, that she's not going to stop being the person that she is today. She has come a long way, and I just, I feel like rehabilitation is important and I feel like that in my role you should never be in a situation where you feel like you have that lock-them-up-and-throw-away-the-key mentality. I feel that given her desire to do better, her desire to be a different person, that she should be given a chance of some kind. And she just, there was just something about her and this whole situation that spoke to me, and I felt like it was necessary for me to be here.
Falcon offered evidence of the many courses and programs she has completed while in prison. Falcon also provided evidence of the recognition she received for her many service activities while in prison. Such feats were remarkable, Sink explained, because programs are limited in the Department of Corrections. In fact, Sink added, most inmates are not eligible to participate in many programs until they are within five years of release, and prisoners serving sentences of life without parole are limited in the number of programs made available to them. As Sink put it:
Falcon entered nearly 80 pages of supporting documents into evidence.
[S]he's accomplished a lot, this is a lot of certificates for somebody that's in prison. Not everyone gets this opportunity.
Some of these particular certificates, one in particular, she was recognized for a two-year commitment to the faith and character based program as a peer facilitator. So that is somebody that not only
had a job assignment, but also worked as a peer facilitator on their own time assisting other inmates. In other words, she gave up her recreation time, or whatever times it was, her own personal time, to be able to assist someone else. So that says a lot for her character that she was willing to get involved in this many programs. ... But a lot of this is just strictly done on her own time, those were not mandatory, so she was giving up whatever time she could somewhere else to be able to assist.
Falcon's original sentence of life without parole had not yet been vacated when she participated in many of these programs. Sink observed that many people who are given life sentences do not bother with rehabilitation.
Sink also commented on Falcon's commendable disciplinary record while in prison. The record established that Falcon had not been the subject of a disciplinary report since 2008. That disciplinary report was the only one received since 2003.
Like Sink, other prison personnel who had never testified on behalf of an inmate also testified at Falcon's resentencing hearing. One of those persons was Ruth Westphal, Director of the JOY program at Florida Women's Reception Center. Westphal worked closely with Falcon, who is in "high demand" in prison because she is an "amazing teacher." Falcon is an inmate Westphal "can fully rely on. She's woman of integrity. She's a woman of truthfulness, honor, character, diligence."
While Falcon has served much of her incarceration at Lowell Correctional Institution, she was transferred to the Florida Women's Reception Center in 2012.
Another witness who had never testified for an inmate before was Katherine Van Zant, founder of the JOY program. She was willing to testify for Falcon because she is a "special case." Van Zant said the following about Falcon:
Rebecca stood head and shoulders above almost every other inmate I saw, for exactly what I heard earlier, as a person who is consistent in how they live out their minute to minute and day to day walk.
I saw a person that had a heart for the other inmates, and was relied on by the leadership in the prison, to teach. And she served as a peer facilitator to the other inmates.
I saw a person that was trusted and was very trustworthy, that had clear integrity, not just from the leadership of the prison, but from the other inmates.
I like to refer to myself as being not just grass roots, but at the roots of the grass. And I have interacted with hundreds of inmates in this process. And I hear, they speak with me and I hear things that even the staff don't know, of what's really going on beneath the scenes.
And I never, ever, ever heard anything but the highest respect, on any level, for Rebecca Falcon, from inmates or from staff.
After the evidentiary portion of the resentencing hearing concluded, the parties were allowed to submit written closing arguments and sentencing memoranda. The actual sentencing then occurred three and half months later.
On the day of sentencing, Falcon addressed the trial court. She expressed her great sorrow and regret at the death of the victim and the pain caused to his family. She recognized that her "punishment in being in prison is what [she] deserve[d] and it was up to [her] to change." She added that she has tried to do some good to atone for her "horrible actions, and will continue to do that whether [she] is in prison or [she is] free."
At sentencing, the trial court read much of its prepared sentencing order aloud. The trial court noted Williams v. State, 242 So. 3d 280 (Fla. 2018), where the Supreme Court held that a jury is to determine whether a juvenile defendant actually killed, intended kill, or attempted to kill the victim. The trial court purported to follow the Williams holding. In doing so, it agreed that since the jury verdict failed to establish that the jury found beyond a reasonable doubt that Falcon actually killed victim or that she intended to kill victim, then she must be resentenced as if there were a finding that she did not actually kill, intend to kill, or attempt to kill the victim. See id . at 293. Thus, the trial court determined that the 40-year mandatory minimum required by section 775.082(1)(b) 1., Florida Statutes (2020), did not apply to Falcon.
After considering the factors in section 921.1401, the trial court sentenced Falcon to life in prison with a sentence review after fifteen years. This appeal follows.
Lack of Competent Substantial Evidence
Falcon argues here that many of the trial court's findings of fact made on the sentencing factors in section 921.1401(2) were not supported by competent, substantial evidence. I agree.
We review factual findings in a sentencing order under the competent, substantial evidence standard. Jackson v. State , 276 So. 3d 73, 75 (Fla. 1st DCA 2019) ; J.M.H. v. State , 311 So. 3d 903, 914 (Fla. 2d DCA 2020). Competent, substantial evidence is "such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred" or such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." De Groot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957) ; see also Gonci v. Panelfab Prod., Inc ., 179 So. 2d 856, 858 (Fla. 1965) (noting that competent, substantial evidence must comport with logic and reason); Atkins N. Am., Inc. v. Tallahassee MH Parks, LLC , 277 So. 3d 1156, 1160 (Fla. 1st DCA 2019) (same). Under the definition from these cases, several of the trial court's findings of fact below were not supported by competent, substantial evidence.
If the findings are supported, then we analyze the "ultimate sentencing decision" under an abuse of discretion standard as discussed below. Jackson , 276 So. 3d at 75 ; see also Bell v. State , 313 So. 3d 1183, 1189 (Fla. 1st DCA 2021).
Because of the sentencing review, Falcon's current sentence "provide[s] for a meaningful opportunity for release." J.M.H. , 311 So. 3d at 914 (citing State v. Michel , 257 So. 3d 3, 7 (Fla. 2018) ). So she makes no argument that her sentence is unconstitutional.
The written order entered by the trial court detailed its findings. See § 775.082(1)(b) 3., Fla. Stat. (2020) (requiring written findings on whether a defendant "is eligible for a sentence review hearing"). The trial court was required by section 921.1401(2) to "consider factors relevant to the offense and the defendant's youth and attendant circumstances." As part of that directive, the trial court had to consider ten specified statutory factors. See § 921.1401(2)(a)–(j).
Although I respectfully disagree with the trial court as to competent, substantial evidence and weight given to some findings, I still appreciate the court's thorough order which helps facilitate review.
As to subsection 921.1401(2)(a), which calls on the trial court to consider the "nature and circumstances of the offense committed by the defendant," the trial court found that the factor weighed "heavily" against Falcon. In so concluding, the trial court found Falcon was the shooter. This conflicted with the jury verdict and as such violated Williams . 242 So. 3d at 293.
The jury verdict did not ask about actual possession of the firearm as to the murder count. But on the attempted armed robbery count, the jury found that Falcon was guilty as a principal. On that count, the jury rejected that Falcon was in actual possession of the firearm. Years later, in an application for clemency, Falcon admitted to being the shooter. The trial court apparently relied on Falcon's affidavit included in her clemency application in reaching its conclusion that Falcon was the shooter. Falcon's admission in an affidavit, outside court and with none of the procedural safeguards attendant to an in court plea, likely would not satisfy Williams , 242 So. 3d at 292–93, which relied on Alleyne v. United States , 570 U.S. 99, 102, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which in turn relied on Apprendi v. New Jersey , 530 U.S. 466, 488, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See also Fla. R. Crim. P. 3.172(c)(1)–(9) (setting forth matters for a trial court to determine before accepting a plea as voluntary).
In the affidavit, Falcon stated that she placed the gun against the victim's head, and when the cab swerved, the gun discharged. If true, this would be felony murder not premeditated murder. See § 782.04(1)(a)1.–2., Fla. Stat. (1997).
Given Falcon's affidavit, if the trial court considering Falcon to be the shooter was the sole issue, then perhaps we could apply the harmless error standard as permitted in Williams . Id. at 294. But since other findings discussed below were also not supported by competent, substantial evidence, I cannot say this error was harmless.
In finding that Falcon was the shooter, the trial court also noted that the fact "Falcon may have been intoxicated does not mitigate the nature or circumstances of [the victim's] murder." I disagree. When the murder was committed in 1997, voluntary intoxication was a defense which could defeat specific intent. See Garner v. State , 28 Fla. 113, 9 So. 835, 845 (1891) ; Whitfield v. State , 923 So. 2d 375 (Fla. 2005). This common law defense was later statutorily abrogated. See § 775.051, Fla. Stat. (1999) ; Ch. 99-174, § 1, Laws of Florida.
As to subsection 921.1401(2)(b), which asks a trial court to consider the "effect of the crime on the victim's family and on the community," the trial court found this factor too weighed "heavily" against Falcon as the victim was a son, a husband, and a father. The victim was also a contributing member of the community. Falcon has not challenged the trial court's findings on this factor.
As to subsection 921.1401(2)(c), which pertains to a "defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense ," the trial court found that this factor weighed against Falcon because there was no evidence that she was less mature than the average fifteen-year-old. (Emphasis added). According to the trial court, her "intelligence, however, became evident at an early age in spite of her failing grades." The trial court did not disclose how it was evident she was intelligent at an early age. And it is her intellectual capacity at the time of the offense that is to be assessed.
It should also be noted that "the chronological age of a minor is itself a relevant mitigating factor of great weight." Miller , 567 U.S. at 476, 132 S.Ct. 2455 (quoting Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ). So, for example, a fifteen-year-old defendant is entitled to greater mitigation based on chronological age than a seventeen-year-old defendant. See also Serrano v. State , 279 So. 3d 296, 306 (Fla. 1st DCA 2019).
The primary opinion references an affidavit from Falcon's mother showing that Falcon was able to "read, write, and recite Bible passages" at four and a half years’ old. (Primary Op. at 393). But section 921.1401(2)(c) requires an assessment of Falcon's mental capacity at the time of the offense.
The trial court then observed that while Falcon was in jail awaiting trial, she obtained a GED. But this achievement occurred when Falcon was seventeen years old, some two years after the offense.
As to Falcon's mental and emotional health, the trial court found that it had improved upon Falcon moving to Panama City months before the murder so that her mental and emotional health could not be found a contributing factor to her criminal conduct. The trial court observed about this factor:
The record suggests that the Defendant's mental and emotional health at the time of the offense may have been less than desirable, particularly given her proclivity to engaging in cutting herself. This appears to have resulted primarily from the mental and emotional abuse she suffered from her stepfather. However, shortly after moving to Panama City to live with her grandmother, she stopped engaging in this behavior and was even scheduled to meet with a counselor. In spite of her self-harming actions, the Defendant's clear intelligence and signs of improvement within a short time of moving to Panama City call into doubt the extent to which her mental and emotional health impacted her decision to commit murder. Without evidence of a nexus between her mental and emotional health and the offense, the Court cannot deem this to be a mitigating factor. This factor weighs against the Defendant.
But evidence of a scheduled counseling session is not evidence of sound mental health. As discussed below, the trial court mistook the testimony of Kathleen Powe, Falcon's step-aunt (the daughter of Falcon's step-grandfather), who described Falcon as a most unhappy teenager just before the murder. The grandmother testified to the lack of an age-appropriate social life. Competent, substantial evidence does not support the court's findings as to subsection 921.1401(2)(c).
Next, the trial court found subsection 921.1401(2)(d), which focuses on a "defendant's background, including his or her family, home, and community environment," also weighed against her. The trial court acknowledged Falcon's "very dysfunctional family," which included her mother's drug addiction and sexual abuse by her stepfather as well as by other older men. But the trial court found other considerations relevant as well, to wit:
The Defendant's step-aunt testified that the Defendant was a sweet, kind little girl who intentionally avoided the very trouble that her own daughter always seemed to find. The Defendant's grandmother testified that the Defendant was a good girl, which allowed her to conclude that she could take on the extra burden of caring for her granddaughter while she also cared for husband, who had Parkinson's. Furthermore, it is apparent that the Defendant's close relationship with her grandmother was a positive influence that immediately began producing results.
Thus, because of the "positive changes" which followed her move to Panama City and because of the "lack of evidence linking the Defendant's undesirable past with the offense that she ultimately committed," the trial court found this factor weighed against Falcon.
It is true that Falcon was sent to Panama City to live with her maternal grandmother and her step-grandfather about three months before the murder. She was sent there from Kansas by her mother and sexually abusive stepfather because the then fifteen-year-old Falcon was associating with an adult male whom the grandmother described as "undesirable." According to the grandmother, while in Panama City, Falcon went to school, did her homework, and did not cause "any problems." But the grandmother also testified, Falcon stayed home and "didn't associate with friends or anything." When Falcon learned her male friend in Kansas was "with some other girl," she was "broken hearted for a week." It was because she was upset, the grandmother further testified, that Falcon drank some of her step-grandfather's whiskey and went out of the house the night of the murder.
The trial court mistakes the testimony of Kathleen Powe, Falcon's step-aunt. When Powe's father married Falcon's grandmother, Powe was seventeen years old. Falcon's mother was just a few years younger. When Powe's children were young, they played with Falcon, but upon the marriage of Falcon's mother to Falcon's stepfather, Falcon's family became "[v]ery dysfunctional." According to Powe that the dysfunctionality included prescription drug abuse by Falcon's mother and sexual abuse of Falcon by her stepfather. Powe related that Falcon reported the sexual abuse to family members who did not consider the claim credible. While it is true that Falcon was a sweet little girl, according to Powe, Falcon went from "a happy go lucky girl to a very sad teenager." Powe added that "[r]ight before" the murder occurred, Falcon "had gotten sad. And she had changed her [manner of] dress and she had gained a lot of weight. She was really sad." The trial court accurately characterized Powe's testimony in its summary of the evidence offered at the resentencing hearing. But in its findings on subsection 921.1401(2)(d), the trial court overlooked relevant portions of her testimony thus mistaking the import of it. Competent, substantial evidence therefore does not support this factor.
As for subsection 921.1401(2)(e), the "effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense," the trial court found Falcon left her grandmother's house "while intoxicated" and that "[e]verything that followed was the product of mature, thoughtful consideration." The trial court found that because the events of the night of the murder were planned, only Falcon's decision to "to turn to alcohol to avoid her sadness and to subsequently leave the house while intoxicated" was immature. Thus, this factor weighed "heavily" against Falcon, the trial court found.
However, since Falcon was intoxicated when she left home, as the trial court found, then everything that followed — the discussion between Falcon and her acquaintances about hailing a cab, the attempted commission of a robbery, and the discharge of the gun — was not the product of "thoughtful consideration." Further, since Falcon was intoxicated, she could likely not have "appreciate[d] risks and consequences on [her] participation in the offense." See § 921.1401(2)(e). In fact, in ordering resentencing, the Florida Supreme Court recognized that Falcon's actions bore "the characteristics of youth." Falcon III , 162 So. 3d at 963 n.3 (quoting Miller , 567 U.S. at 473, 132 S.Ct. 2455 ). Thus, competent, substantial evidence does not support these findings.
Subsection 921.1401(2)(f) also weighed "heavily" against Falcon, according to the trial court. This factor addresses the "extent of a defendant's participation in the offense." There is no doubt that Falcon was integral to the murder, even if she did not supply the handgun. Competent, substantial evidence therefore supports this.
As for subsection 921.1401(2)(g), the "effect, if any, of familial pressure or peer pressure on the defendant's action," the trial court found this factor weighed "heavily" against Falcon as well. According to the trial court, there was no familial pressure to commit the murder, and while Falcon's eighteen-year-old accomplice brought the gun, peer pressure, if it existed at all, was "extremely limited." But the Florida Supreme Court, admittedly in dicta, concluded to the contrary. In Falcon III , the Court stated, "record evidence suggests that she is exactly the type of juvenile offender the United States Supreme Court was referring to in Miller and its other recent juvenile sentencing cases regarding the ‘characteristics of youth, and the way they weaken rationales for punishment’ — a juvenile with a troubled upbringing, whose offense was influenced by ‘familial and peer pressures,’ and who has shown great capacity for remorse and rehabilitation." Falcon III , 162 So. 3d at 963 n.3 (quoting Miller , 132 S. Ct. at 2465–66, 2468 ). Falcon stated in her clemency affidavit that she was distraught by the loss of her Kansas boyfriend and that night she "was trying to fit in with the tough crowd. I tried to act braver than [her eighteen-year-old accomplice] and [her fifteen-year-old acquaintance] to cover my true feelings of insecurity and low self-esteem."
In rejecting the notion that peer pressure played any role in Falcon's conduct, the trial court observed that Falcon planned and orchestrated the offense. But the fact that Falcon was integral to the murder does not preclude the effect of peer pressure. As the United States Supreme Court explained in Miller , "youth" is "a time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness," and it is "a moment and ‘condition of life’ when a person may be most susceptible to influence and to psychological damage." 567 U.S. at 476, 132 S.Ct. 2455 (alteration in original) (quoting Johnson v. Texas , 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) ). As the Florida Supreme Court put it, while intoxicated, Falcon "made an ‘impulsive’ decision" to leave her grandmother's home that fateful evening "because she ‘was still not popular’ and wanted ‘to be accepted.’ " Falcon III , 162 So. 3d at 957. Peer pressure and preplanning (while intoxicated) are not mutually exclusive. Competent, substantial evidence does not support the trial court's findings as to subsection 921.1401(2)(g).
As for "the nature and extent of the defendant's prior criminal history," subsection 921.1401(2)(h), the trial court found this factor only "slightly" favored Falcon even though she had no prior criminal record. This finding is not challenged by Falcon.
Although not challenged here, the lack of criminal history should have been given more weight. After all, the presence or absence of criminal history weighs heavily in most sentences. See, e.g. , Fla. R. Crim. P. 3.992 (providing for consideration of a defendant's "prior record" in arriving at "total sentence points" to be used in "sentence computation"). My view expressed below, that the trial judge abused his discretion, does not factor in the judge giving only slight weight to Falcon's lack of criminal history.
As for subsection 921.1401(2)(i), the "effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment," the trial court contrasted Falcon's behavior with that of another 15-year-old, Bruce Johnson. It will be recalled that Johnson was at first with the eighteen-year-old Gilchrist (who brought the gun) and Falcon on the night of the murder, but Johnson opted not to get in the cab with them. Thus, Johnson did not participate in criminal offenses. The trial court observed that "two fifteen-year-olds made two very different, life-altering decisions. One planned, orchestrated, and committed a murder; the other went home after trying to discourage the commission of what he knew to be an awful crime," according to his testimony at Falcon's trial.
The premise of Miller ’s requirement of an individualized sentencing hearing for a juvenile offender is that each case is unique. Id. at 465, 132 S.Ct. 2455 (holding that an individualized hearing is required where "youth and its attendant characteristics" are considered to separate those juveniles who may be sentenced to life without parole from those who may not); see also Montgomery v. Louisiana , 577 U.S. 190, 209–10, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). That one fifteen-year-old can act differently from another is precisely why the panoply of possible contributing factors to that action is to be considered by a sentencing court under section 921.1401(2).
That another youth may have acted maturely does not disprove Falcon was acting immaturely. See Miller , 567 U.S. at 476, 132 S.Ct. 2455. Given her self-harming, her abuse of alcohol, and her association with much older persons in Florida and in Kansas, the record shows that Falcon's youth and its concomitant "transient immaturity" did play a role in her decision-making at that time of her life. See id . at 479–80, 132 S.Ct. 2455. Competent, substantial evidence therefore does not support the trial court's findings as to subsection 921.1401(2)(i).
Finally, the last factor for consideration is subsection 921.1401(2)(j), which pertains to the "possibility of rehabilitating the defendant." The primary and concurring in result opinions contend that this factor is locked in following the trial, and Falcon's subsequent actual rehabilitation should not be considered by a sentencing court. But resentencing is a de novo proceeding. Dortch v. State, 266 So. 3d 1240, 1242 (Fla. 1st DCA 2019) (citing State v. Fleming , 61 So. 3d 399, 400 (Fla. 2011) ). And the Florida Supreme Court considered the post-trial rehabilitation shown by Falcon in stating that she "has shown great capacity for remorse and rehabilitation." Falcon III , 162 So. 3d at 963 n.3. So, respectfully, the majority's contention is incorrect.
The majority's contention also conflicts with the "model prisoner" cases. See Valle v. State , 502 So. 2d 1225, 1226 (Fla. 1987) (citing Skipper v. South Carolina , 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) ). The Eighth Amendment requires "considering, as a mitigating factor , any aspect of a defendant's character or record." Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion of Burger, C.J.) (emphasis in original). This includes testimony that a defendant "had been a model prisoner and was rehabilitated during [her] prior imprisonment." Valle , 502 So. 2d at 1226.
Although Valle , Skipper , and Lockett are death penalty cases, their holdings apply to juvenile sentencing or resentencing under Miller since both types of cases require "individualized sentencing." Id . at 475, 132 S.Ct. 2455 (citing Graham , 560 U.S. at 89–90, 130 S.Ct. 2011 (Roberts, C.J., concurring in judgment)).
The majority's conclusion about potential for rehabilitation also conflicts with the Second District's holding in J.M.H. . There the court stated, "It is clear that the rehabilitation contemplated by Miller occurs in the prison setting. The trial court's dismissal of J.H.M.’s progress [after approximately sixteen years in prison] because it occurred in prison is contrary to the intention of Miller ." J.M.H ., 311 So. 3d at 917. There is no better evidence to show the possibility of rehabilitating a prisoner than the rehabilitation that has already occurred.
In analyzing evidence of rehabilitation, the trial court correctly considered Falcon's rehabilitation while incarcerated and found this factor favored Falcon. But after recounting some of the extensive evidence offered by Falcon as to her education, work, conduct, and reputation in prison, the trial court was reluctant to find Falcon has been rehabilitated. The trial court explained:
[T]he issue of rehabilitation is more complex. It involves accepting responsibility for one's actions, having remorse for one's offenses, taking active steps towards overcoming one's weaknesses, and exhibiting a clear desire to become a better person. The evidence in the present case is insufficient to demonstrate that rehabilitation has already been achieved by this Defendant. In fact, there is little evidence demonstrating that the Defendant has taken responsibility for her actions or is truly remorseful. Similarly, there is little, if any, evidence demonstrating the active steps taken by this Defendant toward overcoming her known weaknesses, like her distrust of men, the effect of traumatic past, and her substance abuse issues.
Thus, in effect, the trial court determined that Falcon's "traumatic past" and "her substance abuse issues" were not mitigating factors in sentencing but were hinderances to her full rehabilitation.
As for her supposed lack of remorse , in an affidavit filed in support of a clemency application, Falcon acknowledged her responsibility for the crime and expressed remorse. The trial court relied on other statements in this affidavit in its resentencing order. Falcon also expressed remorse directly to the victim's widow. An affidavit from the victim's widow in 2006 detailed the three letters the widow received from Falcon "apologizing for what happened that night." The widow's affidavit also recounted a then recent telephone call the widow had received from Falcon where "she apologized for the hurt that she caused me and my family." Several witnesses, including Sink and Van Zant, all testified that in their opinions, Falcon had taken responsibility and was remorseful. Falcon expressed at the resentencing hearing her sorrow and regret for the hurt she has caused. She acknowledged that her conduct caused children to lose their father and a wife to lose her husband. Finally, as noted above, the Florida Supreme Court observed that Falcon "has shown great capacity for remorse." Falcon III , 162 So. 3d at 963 n.3. The State provided no evidence to the contrary to show Falcon was not remorseful.
Section 921.1401(2)(j) speaks of rehabilitation not remorse. A defendant could maintain his or her innocence post-conviction and still be rehabilitated. Even if remorse must be shown by a defendant to be rehabilitated, I respectfully submit that the trial court and primary opinion err in holding that Falcon has not shown remorse.
The trial court attached the affidavit of Falcon to its resentencing order as an exhibit.
In the affidavit, the widow also stated that "the possibility of life without the possibility of parole is too harsh of a sentence for Rebecca Falcon." The widow declined to opine on the appropriate term-of-years sentence.
Further, as to Falcon's alleged failure to address "her distrust of men," "her traumatic past," and "her substance abuse issues," the record establishes that Falcon did take courses in prison, participated in A.A. and N.A., and thus did address "her substance abuse issues." There was no evidence offered that Falcon declined treatment or participation in programs relevant to these "known weaknesses." Importantly, Sink, the former warden, testified that limited programs are made available to inmates serving life sentences.
The United States Supreme Court too observed in Graham that rehabilitation services are often denied to prisoners serving life sentences. 560 U.S. at 74, 130 S.Ct. 2011.
There was no evidence that Falcon used or abused drugs or alcohol in prison given her lack of any disciplinary reports since 2008. And given that Falcon was the victim of multiple instances of sexual abuse by older men, if she has distrust of men that would be understandable and does not counter the overwhelming evidence of her rehabilitation.
Competent, substantial evidence therefore does not support all the trial court's findings on rehabilitation under section 921.1401(2)(j). That is, there was much more unrefuted evidence of rehabilitation shown by Falcon than just what the trial court found.
In its resentencing order, the trial court determined that only two of the ten sentencing criteria of section 921.1401(2) favored Falcon, though neither favored her strongly. The trial court acknowledged Falcon had no prior record and had an "impressive" record of accomplishments while in prison. Of the remaining eight criteria, the trial court determined six weighed "heavily" against Falcon.
As detailed above, multiple significant findings by the trial court as to the factors in section 921.1401(2)(a)–(j) do not comport with logic or reason. These findings thus do not constitute competent, substantial evidence. See Gonci , 179 So. 2d at 858 ; Atkins N. Am. , 277 So. 3d at 1160. For these reasons, the trial court erred in sentencing Falcon to life in prison. I would vacate the life sentence and remand for a new sentencing hearing.
In sentencing Falcon to life, the trial court ordered a review to be conducted in fifteen years pursuant to sections 775.082(1)(b) 2. and 921.1402(2)(c). That would be a separate proceeding initiated by her. See § 921.1402(4) ; Bell , 313 So. 3d at 1187.
Abuse of Discretion
Falcon also argues the trial court abused its discretion in sentencing her to life in prison. "[W]e review the court's ultimate sentencing decision based on [its] findings for an abuse of discretion." Jackson , 276 So. 3d at 75 (citing Simmons v. State , 267 So. 3d 1067, 1069–70 (Fla. 1st DCA 2019) ); see also Bell v. State , 313 So. 3d 1183 (Fla. 1st DCA 2021). I agree with Falcon that her life sentence was an abuse of discretion.
It should again be noted that this is not a constitutional argument. Rather, it is Falcon's contention that given the considerable evidence of her rehabilitation under section 921.1401(2)(j), she should have received something other than a life sentence.
Abuse of discretion is a high standard, but not insurmountable. See Coday v. State , 946 So. 2d 988, 1000–01 (Fla. 2006) ; J.M.H ., 311 So. 3d at 917–18 ; Washington v. State , 325 So. 3d 306, 308 (Fla. 1st DCA 2021) (on motion for rehearing en banc and clarification) (Long, J., concurring) ("reject[ing] the notion that such appeals [claiming an abuse of discretion in resentencing a juvenile offender] are futile"). At some point, a trial court discounting the overwhelming evidence of rehabilitation creates a sentence that is not reasonable. Here, Falcon's life sentence was not reasonable. The extensive record evidence, as discussed above, reflects that Falcon is not a person of "irreparable corruption." Miller , 567 U.S. at 479–80, 132 S.Ct. 2455 (citations omitted). As was the case in J.M.H. , the trial court here "improperly focused on the facts of [Falcon's] offenses without duly considering the mitigating qualities of her background and youth and her undeniable rehabilitative status and opportunity." Id . at 918. I respectfully submit that the primary opinion does the same.
Falcon was fifteen years old when she participated in an undeniably horrible crime. She was two years younger than the juvenile offender in J.M.H. , who at seventeen participated in a robbery and murder with two adults. Id. at 906. Here, the trial court's emphasis on the circumstances of the murder over and above the other considerations would appear to be contrary to the gist of the decision in Miller as applied by Falcon III in ordering resentencing under section 921.1402(2). The Miller Court recognized that "youth is more than a chronological fact" and is "itself a relevant mitigating factor of great weight." Id. at 476, 132 S.Ct. 2455 (quoting Eddings v. Oklahoma , 455 U.S. 104, 115, 116, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ). Youth "is a time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness.’ " Miller , 567 U.S. at 476, 132 S.Ct. 2455 (alteration in original) (quoting Johnson , 509 U.S. at 368, 113 S.Ct. 2658 ).
In a premeditated murder, J.M.H. shot the man who had sexually molested her. Id . at 906.
Like the juvenile in J.M.H. , Falcon had been sexually abused. Further, Falcon, like the juvenile in J.M.H. , had a troubled upbringing; each also had a mother with a drug addiction. As with Falcon, several prison volunteers testified on behalf of the defendant in J.M.H. as to her substantial progress in prison and the lack of disciplinary problems. Id. at 910–11. In fact, as happened here, a former warden testified on behalf of J.M.H. Id. at 911. There, the warden testified that younger inmates typically have some disciplinary issues during the initial phase as "more experienced inmates test them physically." Id. J.M.H. had no disciplinary reports for nearly a decade and had worked in several positions of trust, like Falcon. Id. As in J.M.H ., the trial court abused its discretion in ordering a life sentence based on the competent, substantial, and undisputed evidence of rehabilitation presented by Falcon.
The sexual abuse started when Falcon was around seven and half years old. That abuse continued at times with different older abusers until she moved to Florida from Kansas, three months before the murder. The abuse was mentioned in Falcon III . Id . at 957.
Conclusion
Because competent, substantial evidence does not support the trial court's findings required under Florida law, and it was an abuse of discretion to reimpose a life sentence, I would reverse Rebecca Falcon's life sentence and remand for resentencing to a term-of-years sentence. Since the majority affirms Falcon's life sentence, I respectfully dissent.