State v. Wesby, 262 So. 3d 818 (2019)

Jan. 9, 2019 · District Court of Appeal of Florida, Fourth District · No. 4D16-4246
262 So. 3d 818

STATE of Florida, Appellant,
Edward WESBY, Appellee.

No. 4D16-4246

District Court of Appeal of Florida, Fourth District.

[January 9, 2019]

Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellee.

Per Curiam.

The 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). See 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, 258 So.3d at 1240-41, 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. Michel , 257 So.3d at 3. 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 .

Gross, May and Damoorgian, JJ., concur.