• Second District Court of Appeal
  • 2D12-5605
  • Jan 22 2014 (Date Decided)


Case No.: 2D12-5605

Date: Jan. 22, 2014

Case type: Eighth Amendment

Court: Second District Court of Appeal

Author of opinion: Per curiam

Lawyer for petitioner: Stuart M. Pepper, Law Offices of Stuart M. Pepper, Cape Coral

Lawyers for respondent: Pamela Jo Bondi, attorney general, Tallahassee; Jonathan P. Hurley, assistant attorney general, Tampa

Panel: Judges Edward C. LaRose, Craig C. Villanti and Chris W. Altenbernd

Originating court: Lee Circuit Court

Ashley Toye, 25, has served seven years of a sentence with no end for her second-string role in a gruesome, gang-related slaying of two Cape Coral teens in 2006 when she was a pregnant 17-year-old. Now her lawyer is set to convince a trial judge that Toye shouldn't spend the rest of her life in prison.

A panel of the Second District Court of Appeal on Wednesday became the first Florida appellate court to rule that a 2012 U.S. Supreme Court landmark decision in juvenile justice must be applied retroactively to cases like Toye's.

In Miller v. Alabama, the high court decided that the Eighth Amendment prohibition against cruel and unusual punishment "forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders."

The question is: Does that precept apply to the 266 juvenile homicide offenders in Florida prisons who were convicted before Miller's case was decided?

Because the district courts are split on establishing the Miller time frame, a conflict has been certified to the Florida Supreme Court. The justices already have accepted review in Falcon v. State from the First District Court of Appeal.

With more judges choosing retroactivity, "the Florida Supreme Court is going to get even more pressure to resolve the issue," said Richard Rosenbaum, a Fort Lauderdale appellate lawyer who specializes in counseling juveniles convicted of serious crimes.

Knowing the state law on life terms is unconstitutional, the Legislature failed to pass a new law last year, creating a void.

"There have been some bills formulated, just nothing that everyone's been able to agree on," Rosenbaum said. "We are still in a state of quandary with regard to the maximum penalty for children charged as adults with life felonies."

The latest version, now in a Senate committee, lists 10 factors a judge must consider before sentencing a juvenile. The minimum sentence would be 35 years.

Punishment Options

The central conflict is over whether the Legislature should mete out one-size-fits-all punishment for juveniles tried as adults. Before the existing law mandating life for homicides, the law allowed parole consideration after 25 years.

A return to parole would pose its own set of problems, according to Rosenbaum, who said some of his young clients have asked about the likelihood of this happening.

"Even kids realize there are a huge number of people who are back in prison after violating parole," he said. "We don't want to set them up for failure. That's what happened with Lionel."

Rosenbaum represented Lionel Tate, the Pembroke Park teen who drew national attention for getting a life sentence without parole after killing Tiffany Eunick, his 6-year-old neighbor, when he was 12. Rosenbaum succeeded at overturning Tate's sentence, but the teen violated parole, and another lawyer negotiated a 30-year plea deal.

"I'd like to see no minimum mandatory, I'd like to see the judges have discretion," Rosenbaum said. He would be happy "as long as the courts are treating the kids as people," which Rosenbaum defines as juveniles, not adults. "That's what they should be doing. Instead, kids are getting thrown in as adults, and they just get fed to the wolves."

The Second District's per curiam opinion in Toye's case seems to push for carefully tailored juvenile sentences and against legislative fiat, citing Miller.

"Miller's discussion of individualized attendant circumstances, such as the juvenile's age, the juvenile's family and home environment, the circumstances of the homicide, and the extent of the juvenile's participation in the homicide, makes clear that these particular considerations could not be generically predetermined by the legislature," the opinion states.

One sentence for all means greater efficiency. The opinion responds to the state's concern about "the burden upon the courts" that retroactivity will impose: Resentencing—not a retrial—is required.

The Second District reversed the lower court order denying Toye's motion and remanded for resentencing. The panel declined to provide guidelines for "the proper range of sentencing options," saying the court should entertain arguments on the issue.

That refusal to engage in the overarching debate drew heat in a concurrence by Judge Craig Villanti.

A "statutory gap now exists under which there is no legal sentence available to the sentencing court for a juvenile convicted of a homicide offense," he wrote.

The Miller hearing for Toye, therefore, "will in fact be an entirely Sisyphean endeavor," he wrote. "I believe that putting the post-conviction court in such a rudderless position is at best improvident."

Villanti urges a return to the constitutional law allowing parole consideration after 25 years. He offers a question based on that premise to the Florida Supreme Court.

In a second concurrence, Judge Chris Altenbernd disagrees with Villanti's solution. He wants the Legislature to step into the breach as soon as possible.

Altenbernd even gently threatens legislators with a statute that states in the absence of any guidance from Tallahassee, a court "shall" limit a sentence to one year in prison. He writes "there is a small risk" a judge might find that statute applicable to juveniles imprisoned for life.

Rosenbaum said he believes the Supreme Court will consolidate Toye with Falcon and other cases addressing juvenile sentencing.

He hopes the high court focuses on Toye.

"Especially with the concurrences, the court sort of has a mix and match as to what they want the issue to be," he said.

Still, Rosenbaum predicted the justices "will come out and say, 'Legislature, give us some guidance. We don't write the laws; we determine and enforce the laws.' "