Opinion
Case No. 5D19-2993
05-29-2020
Scott Brian WEIAND Appellant, v. STATE of Florida, Appellee.
Scott Brian Weiand, South Bay, pro se. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
Scott Brian Weiand, South Bay, pro se.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
WALLIS, J.
Appellant appeals the trial court's denial of his Motion for Review of Juvenile Sentence filed pursuant to Florida Rule of Criminal Procedure 3.802. We find that no sentence review was held pursuant to section 921.1402, Florida Statutes (2019), and Rule 3.802. Therefore, we reverse and remand.
In 1988, Appellant was sentenced as a juvenile offender to two life sentences, and in 2017, he was resentenced pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to life without the possibility of parole. In 2019, Appellant filed a motion for sentence review pursuant to section 921.1402 and Rule 3.802. The trial court found that it had conducted a sufficient review during the 2017 resentencing and dismissed the motion as premature without prejudice for Appellant to refile the motion. This Court reversed the trial court's order, finding that the request for review was not premature, and remanded with directions for the trial court to either conduct a review hearing, or attach records conclusively showing that it had conducted a sufficient review during the 2017 resentencing. Weiand v. State, 277 So. 3d 261, 262–63 (Fla. 5th DCA 2019).
On remand, the trial court entered the order on appeal, relying on its 2017 sentencing order as evidence that it considered the relevant statutory factors and conducted the sentence review hearing. We find that the order in question is erroneous because it made no findings pursuant to section 921.1402, even though both section 921.1402(7) and Rule 3.802(d)(2) require that a written order following a sentence review hearing detail the court's reasons for not modifying the sentence. The trial court additionally erred when it summarily denied Appellant's Motion for Review of Juvenile Sentence without attaching transcripts to the order conclusively refuting Appellant's claims for relief. See Fla. R. App. P. 9.141(b)(2)(D) (explaining that an appellate court "shall" reverse the summary denial of relief on a postconviction motion, including those filed pursuant to Rule 3.802, "unless the record shows conclusively that the appellant is entitled to no relief" and the cause will be "remanded for an evidentiary hearing or other appropriate relief"). For these reasons, we reverse the order and remand for a sentencing review. Because we are concerned by previous comments that Judge Howard has made, which suggest that he has already formed an opinion on this cause, we direct that the sentencing review be conducted by a different judge. See Bellay v. State, 277 So. 3d 605, 609 (Fla. 4th DCA 2019).
REVERSED and REMANDED with Instructions.
ORFINGER and EISNAUGLE, JJ., concur.