BERGER, J., concurs in part, and dissents in part, with opinion.
BERGER, J., concurring, in part, and dissenting.
I agree with the majority that the authority to regulate gain time resides with the Department of Corrections. I also agree that the three-year minimum mandatory sentences imposed on counts two and three for armed robbery and armed carjacking, must run concurrently with each other. However, I disagree with the majority view that, pursuant to section 921.1402, Florida Statutes (2015), Appellant is entitled to a sentence review on counts two and three.
When Appellant was resentenced pursuant to section 921.1401, Florida Statutes (2015), to serve forty years in prison on his conviction for first-degree felony murder, his sentence was no longer unconstitutional under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Nevertheless, he was entitled to, and did, receive a sentence review hearing on this charge pursuant to section 921.1402(2)(c). See § 775.082(1)(b) 2., Fla. Stat. (2015).
Notably, Appellant did not seek resentencing on counts two and three in his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and Miller. At the hearing on the postconviction motion, Appellant raised the issue of determining the applicable sentencing guidelines as to counts two and three, which the trial court declined to address, but Appellant did not raise any issues concerning his aggregate sentence. At the conclusion of the hearing, Appellant requested clarification on the trial court's ruling, but he did not object or argue to the contrary when the trial court stated that it did not believe it had discretion to modify or change Appellant's sentence on counts two and three. Moreover, when the sentences imposed in counts two and three were left undisturbed on resentencing, Appellant did not appeal the trial court's decision to leave those sentences intact. Subsequently, during the judicial review hearing under section 921.1402(2)(c), Appellant did not object when the trial court indicated it did not have jurisdiction to resentence him on those counts. During the judicial review hearing, and in his motion to correct his sentence under Florida Rule of Criminal Procedure 3.800(b), Appellant did no more than argue that he was entitled to immediate release based on his rehabilitation and fitness to reenter society and seek to reduce the first-degree felony murder sentence to ten years so that the sentences for counts two and three, running consecutive to the first-degree felony murder sentence, had already been completed. Appellant made no arguments concerning the aggregate length of his sentences. In fact, it was the State, not Appellant, who raised the issue of the trial court's lack of jurisdiction to review the sentences in counts two and three under section 921.1402(1). As such, the sentences in counts two and three are not subject to review. See Fla. R. App. P. 9.140(e) ;
*819Jackson v. State, 983 So.2d 562, 574 (Fla. 2008) ; Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla. 1987) ("In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court." (citing Tillman v. State, 471 So.2d 32 (Fla. 1985) )). Even if they were, a 112.7 month sentence does not trigger a sentence review hearing under section 921.1402(2). See Barnes v. State, 175 So.3d 380, 382 n.1 (Fla. 5th DCA 2015) ("The statutory provisions governing juvenile sentencing do not apply to the defendant's five-year sentence for count twenty and his one-year sentence for count twenty-one; thus, resentencing on these counts is not necessary.").
I recognize that leaving the sentences in counts two and three intact creates an anomaly in light of the trial court's conclusion that Appellant is rehabilitated and fit to reenter society. Nevertheless, I believe the glitch is one that requires a legislative fix, not a judicial one. See Ortiz v. State, 188 So.3d 113, 116 n.4 (Fla. 1st DCA 2016) (recognizing the anomaly that the Appellant will receive a sentence review under section 921.1402(2)(a) for his first-degree murder conviction but not for home invasion robbery while armed with a firearm). Accordingly, I dissent.
ON MOTION FOR REHEARING, CLARIFICATION, AND REQUEST TO CERTIFY QUESTION
PER CURIAM.
The State of Florida's motion for rehearing or clarification is denied. The State has also requested that we certify to the Florida Supreme Court a proposed question as one of great public importance. We decline to certify the State's question; instead we certify the following question to the court as one of great public importance:
WHEN A JUVENILE OFFENDER IS ENTITLED TO A SENTENCE REVIEW HEARING, IS THE TRIAL COURT REQUIRED TO REVIEW THE AGGREGATE SENTENCE THAT THE JUVENILE OFFENDER IS SERVING FROM THE SAME SENTENCING PROCEEDING IN DETERMINING WHETHER TO MODIFY THE OFFENDER'S SENTENCE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION?
ORFINGER and LAMBERT, JJ., concur.
BERGER, J., concurs in part and dissents in part, with opinion.
BERGER, J., concurring in part, dissenting in part.
I disagree with the decision to deny rehearing, but I agree we should certify a question of great public importance. With that said, I do not believe the question presented by the majority adequately frames the issue in this case. Instead, I would certify the following question proposed by the State of Florida:
IS A JUVENILE OFFENDER WHO OBTAINS JUDICIAL REVIEW FOR A HOMICIDE OFFENSE ALSO ENTITLED TO JUDICIAL REVIEW OF A FIFTEEN-YEAR-OR-LESS SENTENCE FOR A CONTEMPORANEOUSLY COMMITTED NON-HOMICIDE CONVICTION WHERE THE SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT AND THERE IS NO STATUTORY AUTHORITY TO REVIEW IT?