NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


ROBERT STERN,                                 )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D17-2718
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed March 9, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; Neil A. Roddenbery, Judge.

Robert Stern, pro se.



MORRIS, Judge.

              Robert Stern appeals the summary denial of his motion to correct illegal

sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm for

the reasons expressed below.

              In February 2017, Stern filed his 3.800(a) motion, claiming that his life

sentence for sexual battery is illegal under Graham v. Florida, 

(2010), Miller

v. Alabama, 

(2012), and Atwell v. State, 

(Fla. 2016). He
alleged that he was sixteen years old when the offense was committed in 1967 and that

his sentence of life in prison for a nonhomicide offense is illegal.

              The postconviction court denied Stern's motion, concluding that the law he

relies upon is not applicable to him:

              [Stern] does not claim or state that his sentence is in anyway
              comparable to Atwell's, such that his sentence is the
              practical equivalent of a life sentence without the possibility
              of parole. However, as the state's response and
              attachment's show, [Stern] has actually been released on
              parole on two prior occasions, and has a current
              presumptive parole release date approximately 10 years
              from the date of this order. [Stern's] sentence not only has
              actually provided him with multiple meaningful opportunities
              for release, but continues to do so. Therefore, Atwell and
              the preceding case law upon which it was based are not
              applicable to [Stern].

              In Graham, the Supreme Court held that a juvenile's sentence of life in

prison without the possibility of parole for a nonhomicide offense is 

. In Miller, the Supreme Court further held that a sentencing scheme that

mandates a juvenile's sentence of life in prison without the possibility of parole for a

homicide offense is 

. In Henry v. State, 

, 680 (Fla. 2015), the Florida Supreme Court held that Graham prohibited an

aggregate ninety-year juvenile sentence for a nonhomicide offense because it did not

afford a meaningful opportunity for the juvenile to obtain release. In 

, the Florida Supreme Court held that a juvenile's mandatory sentence of life in

prison for murder, with the possibility of parole after twenty-five years, was

unconstitutional because his presumptive parole release date under the applicable

parole guidelines was not for 140 years and his sentence thus resembled a mandatorily-

imposed sentence of life without parole.



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              The above holdings are not applicable to Stern because he was

sentenced to life in prison with the possibility of parole and he was released on parole

twice. Recently, the Third District rejected the same claim that Stern made in his rule

3.800(a) motion. See Rooks v. State, 

(Fla. 3d DCA 2017). The

defendant in Rooks pleaded guilty to sexual battery in 1971 and was sentenced to life in

prison with the possibility of parole. He was released on parole twice but violated parole

and returned to prison. 

He claimed he was entitled to resentencing under

Graham/Miller and Atwell/Henry. The Third District noted that Miller and Graham

"established the threshold which must be met before an Eighth Amendment challenge

can be raised in this context: the juvenile offender must be sentenced to life without the

possibility of parole." 

The court concluded that the defendant could not meet

this threshold "because he was not sentenced to life without parole, but rather was

sentenced to life with parole." 

              Turning to Atwell and Henry, the Rooks court held that those Florida cases

were distinguishable because the defendants in those cases received either an

"effective life without parole sentence" or an "aggregate ninety-year sentence which

failed to afford a meaningful opportunity for early release during his natural life." 

The Rooks court noted that "the parole system and guidelines applicable to Rooks

provided broader discretion in determining whether and when he would be released," as

evidenced by his release after serving only eight-and-a-half years of his life sentence.

reasoned that

              [i]t would appear contrary to both logic and jurisprudence to
              hold that this case is controlled by the Graham/Miller or
              Henry/Atwell line of cases, given that Rooks cannot make
              the threshold showing that he received a life without parole



                                              -3-
              sentence, a sentence that effectively resembles a life without
              parole sentence, or a sentence that failed to afford him a
              meaningful opportunity to obtain early release during his
              natural life.
                     Because Rooks' sentence cannot satisfy this
              threshold, we conclude that it is not subject to Eighth
              Amendment challenge under Graham/Miller or Henry/Atwell.

(footnote omitted); see also Vennisee v. State, 42 Fla. L. Weekly D2170 (Fla.

3d DCA Oct. 11, 2017) (holding that defendant sentenced as a juvenile to life in prison

with possibility of parole was not entitled to relief where he had been released on parole

and his parole was revoked because he committed a new offense as an adult).

              The First and Fourth Districts held similarly in Currie v. State, 

(Fla. 1st DCA 2017), and Rogers v. State, 

(Fla. 4th DCA 2017). In

Currie, the defendant was sentenced to life in prison with the possibility of parole for the

offense of sexual battery with a 

. The First District rejected

his claim that he was entitled to be resentenced under Atwell and Henry because he

"was afforded a meaningful opportunity to obtain release and, in fact, was released on

parole when he was 25 years old" and even though he was reincarcerated, "he

continue[d] to be considered for release on parole." 

In 

, the defendant was sentenced to life in prison with the possibility of parole for the

offense of robbery. He was released on parole twice, both times ending back up in

prison for new offenses. The Fourth District held that his sentence was not

unconstitutional; he had "received more than what Graham requires" because "he had

an opportunity for release and was in fact released from prison twice on parole." 

                                            -4-
             We adopt the reasoning in Rooks, Rogers, and Currie and hold that Stern

is not entitled to resentencing for his nonhomicide offense because he has already been

provided an opportunity for release. The postconviction court properly denied his rule

3.800(a) motion.

             Affirmed.


NORTHCUTT and SILBERMAN, JJ., Concur.




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