Florida District Courts of Appeal, 2019

State v. West

State v. West
Florida District Courts of Appeal · Decided January 9, 2019
262 So. 3d 818 (Southern Reporter, Third Series)

State v. West

Opinion of the Court

Per Curiam.

*819The State appeals an order granting the defendant's motion to correct an illegal sentence. We reverse. Because the defendant is eligible for parole, his sentence is not unconstitutional under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Franklin v. State , 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018). He is not therefore entitled to resentencing under section 921.1402, Florida Statutes.

In State v. Michel , 257 So.3d 3 (Fla. 2018), and Franklin , the Florida Supreme Court receded from Atwell v. State , 197 So.3d 1040 (Fla. 2016). The defendant argues Michel does not create binding precedent because only three justices joined in Justice Polston's opinion and Justice Lewis concurred only in the result. However, four justices joined the majority in Franklin , which recognized that Atwell is no longer good law and "improperly applied Graham and Miller ." Franklin , 258 So.3d at 1241.

Reversed.

Taylor, Damoorgian and Klingensmith, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.