Opinion
No. 1D20-2860
05-25-2022
STATE of Florida, Appellant, v. Kenneth Lainell DAVIS, Appellee.
Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Appellant. Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellee.
Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Appellant.
Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellee.
Per Curiam.
The issue is whether Appellee, a juvenile convicted of attempted second-degree murder with a firearm and sentenced to 30 years in prison, is entitled to judicial review of his sentence at all; and if so, whether at 20 or at 25 years. We hold that he is entitled to sentence review at 25 years. We therefore reverse the sentencing order's requirement of judicial review in 20 years.
Section 775.082(3)(b)2., Florida Statutes, provides that "a person convicted under s. 782.04" whose sentence exceeds 25 years is entitled to judicial review "in accordance with s. 921.1402(2)(b)." That section provides that "[a] juvenile offender sentenced to a term of more than 25 years under s. 775.082(3)(a)5.a. or s. 775.082(3)(b)2.a. is entitled to a review of his or her sentence after 25 years." Appellee argues that because he was only convicted of attempted murder, his conviction was not "under" section 782.04 (the murder statute), but rather under section 777.04 (the criminal attempt statute). This Court has previously rejected this argument. See Hurst v. State , 257 So. 3d 1202, 1204 (Fla. 1st DCA 2018) (holding that conviction for attempted first-degree murder was "under" section 782.04, observing that "[a] person cannot be convicted of the offense of attempt without necessarily proving the elements of some underlying, substantive offense").
Therefore, because future judicial review of Appellee's sentence is governed by section 775.082(3)(b)2., the trial court erred in setting Appellee's judicial review period at 20 years. We reverse and remand with an instruction to the trial court to resentence Appellee with a 25-year review period in accordance with sections 775.082(3)(b)2. and 921.1402(2)(b), Florida Statutes.
REVERSED and REMANDED with instructions.
Makar, Bilbrey, and Kelsey, JJ., concur.