Opinion
No. 1D20-1089
12-08-2021
Walter HALL, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Winokur, J.
Walter Hall sought resentencing, arguing that his sentence violated Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), under the authority of Atwell v. State , 197 So. 3d 1040 (Fla. 2016). The court denied the motion, on the ground that the Florida Supreme Court overruled Atwell in State v. Michel , 257 So. 3d 3 (Fla. 2018), and Franklin v. State , 258 So. 3d 1239 (Fla. 2018). On appeal, Hall asserts that the trial court could not deny his motion because it had already granted resentencing, prior to the Michel and Franklin decisions, by its order appointing counsel to him for resentencing. We reject Hall's claim. See Smith v. State , 299 So. 3d 536 (Fla. 1st DCA 2020) (holding that a trial court's order appointing counsel to a postconviction movant for a postconviction claim that resentencing was required was not a final order on the postconviction motion granting resentencing or the functional equivalent of an order granting resentencing); see also Malone v. State , 330 So.3d 969 (Fla. 1st DCA Aug. 17, 2021) (same).
Even if we had not already ruled on this matter, we note that the Florida Supreme Court, in a similar situation, held that an order that vacates a sentence and orders new sentencing proceedings is a final order, even before the resentencing occurs. State v. Jackson , 306 So. 3d 936 (Fla. 2020). Because the order at issue here did not vacate the previously-imposed sentence, it did not constitute a final order granting the postconviction motion.
We reject Hall's claim that the record was insufficient to show conclusively that he was entitled to no relief. Fla. R. App. P. 9.141(b)(2)(D).
AFFIRMED .
Nordby and Tanenbaum, JJ., concur.