IRA DEMETRIUS MCPHERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's postconviction motion for resentencing was untimely because the cited Supreme Court decisions do not apply to his sentence of life imprisonment with parole eligibility.
[1] A postconviction motion is untimely if filed outside the statutory period, unless a newly established fundamental constitutional right supports the claim.
[2] Decisions from the United States Supreme Court in Graham v. …
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Join FLexlaw to unlock all legal intelligenceThe defendant, a juvenile at the time of the 1994 offense, sought resentencing for felony murder based on recent Supreme Court decisions regarding juv…
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Ira D. McPherson appeals the postcon-viction court’s order summarily denying his motion seeking resentencing for a felony murder that occurred in 1994. He claims that his sentence to life imprisonment with parole eligibility after twenty-five years is cruel and unusual because he was sixteen at the time of the offense and was merely a principal to a felony murder.
The standard two-year period authorized for the filing of a postconviction motion in Mr. McPherson’s case expired many years ago. Mr. McPherson claims that he can file an untimely motion because his claim is supported by a recent change in law that amounts to a newly established “fundamental constitutional right.” See Fla. R. Crim. P. 8.850(b)(2). He relies primarily on the United States Supreme Court decisions in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, — U.S.—, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
The decisions in Graham and Miller do not involve life sentences with parole eligibility after a term of years. See Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013) (holding Miller does not affect a sentence of life imprisonment with parole eligibility after twenty-five years); Lewis v. State, 118 So.3d 291 (Fla. 3d DCA 2013) (declining to apply Graham to a comparable sentence in a postconviction proceeding). Neither the Florida Supreme Court nor the United States Supreme Court has announced new law directed to a sentence like Mr. McPherson’s. Accordingly, we conclude that the motion was untimely and without legal basis. See Jackson v. State, 849 So.2d 321, 322 (Fla. 2d DCA 2003) (“A retroactive change in the law must be announced by the Florida Supreme Court or the United States Supreme Court to warrant post-conviction relief, not a sister intermediate court of appeal.”). Cf La-Fountain v. State, 83 So.3d 881 (Fla. 2d DCA 2012) (refusing postconviction relief for a juvenile’s sentence of life without the possibility of parole for felony murder pri- or to the decision in Miller).
Affirmed.
CASANUEVA and SLEET, JJ„ Concur.
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Landy v. State, 205 So. 3d 801 (Fla. 2d DCA 2016)…ing that the remedy for an unconstitutional sentence under Miller is resen-tencing under chapter 2014-220, Laws of Florida). The postconviction court denied Mr. Landy’s motion based upon then-exist [*802] ing case law. See, e.g., McPherson v. State, 138 So. 3d 1201, 1202 (Fla. 2d DCA 2014) (stating that Miller was inapplicable because McPherson was sentenced to life in prison with parole eligibility after twenty-five years); Atwell v. State, 128 So. 3d 167, 169 (Fla. 4th DCA 2013) (holding that Miller was inap…
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Hixon v. State, 205 So. 3d 834 (Fla. 2d DCA 2016)…court summarily denied Hixon’s motion because then-existing case law held that juveniles who were sentenced to life imprisonment with the possibility of parole were actually provided with a meaningful opportunity for release. See McPherson v. State, 138 So. 3d 1201, 1202 (Fla. 2d DCA 2014) (citing Atwell v. State, 128 So. 3d 167, 169 (Fla. 4th DCA 2013), for the proposition that Miller does not apply to life sentences with parole eligibility)). The Florida Supreme Court recently addressed this issue when it q…
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Rembert v. State, 300 So. 3d 791 (Fla. 1st DCA 2020)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012)
- Graham v. Florida (1st Cir. 2010)
- Atwell v. State, 128 So. 3d 167 (Fla. 4th DCA 2013)
- Lewis v. State, 118 So. 3d 291 (Fla. 3d DCA 2013)
- Jackson v. State, 849 So. 2d 321 (Fla. 2d DCA 2003)
- Holcombe v. State, 83 So. 3d 881 (Fla. 3d DCA 2012)