Opinion
Case No. SC14-891
10-13-2016
DARYL LEVON TINDALL, Petitioner, v. STATE OF FLORIDA, Respondent.
PAMELA JO BONDI ATTORNEY GENERAL Tallahassee, Florida Cynthia L. Comras Assistant Attorney General Florida Bar No.: 0151319 1515 North Flagler Drive, 9th Floor West Palm Beach, Florida 33401 Telephone: (561) 837-5016 CrimAppWPB@myfloridalegal.com
L.T. Nos. 4D12-2324, 472006CF000900A MOTION TO STAY
COMES NOW Respondent, the State of Florida, by and through undersigned counsel, and hereby moves this Court to stay the proceedings in the above-styled case pending final resolution of Kelsey v. State, SC15-2079, Collins v. State, SC16-716, and Peterson v. State, SC16-1211, and states:
1. In this case, Petitioner was resentenced under Graham v. Florida, 130 S.Ct. 2011 (2011) to a term-of-years, 58 years in prison, followed by 30 years of sex offender probation, which would enable him either to: (1) earn gain time for good behavior and thereby be eligible for early release at the age of 65, after serving only 85% of his sentence, or 49 years in prison, or to (2) not earn any gain time and serve his full sentence, but be eligible for release at the age of 76. In either scenario, Petitioner's sentence does not amount to a de facto life sentence because his age upon release would not exceed his natural life expectancy. Moreover, Petitioner's sentence does not violate Graham, Gridine v. State, 175 So. 3d 672 (Fla. 2015), and Henry v. State, 175 So. 3d 675 (Fla. 2015), since he is afforded a meaningful opportunity to obtain early release for good behavior at the age of 65. Lastly, Petitioner is not entitled to be resentenced under the framework established in chapter 2014-220, Laws of Florida, and codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes, because the changes to resentencing meant to comply with Graham were not intended to be retroactive in non-homocide cases, like the case at hand. See Davis v. State, No. 4D15-3277, 2016 WL 4771440 (Fla. 4th DCA Sept. 14, 2016).
2. Similarly, in Peterson, which is now pending before this Court in case number SC16-1211, the Fifth District Court of Appeal certified the following four questions, which are also applicable in the instant case: (1) Does Henry v. State, 175 So. 3d 675 (Fla. 2015), only apply to lengthy term-of-years sentences that amount to de facto life sentences? (2) Does Henry apply retroactively to sentences that were final at the time Henry was decided? (3) If Henry only applies to de facto life sentences, then, in determining whether a term-of-years sentence is a de facto life sentence, should factors such as gender, race, socioeconomic status, and potential gain time be considered? (4) If so, at what point does a term-of-years sentence become a de facto life sentence? See Peterson v. State, 193 So. 3d 1034 (Fla. 5th DCA 2016).
3. Also, based on its resolution of the case in Peterson, the Fifth District Court of Appeal certified conflict with Collins v. State, 189 So. 3d 342 (Fla. 1st DCA 2016), which is also now pending in this Court in case number SC16-716. See Peterson, 193 So. 3d 1039.
4. Lastly, in Kelsey, the First District Court of Appeal certified the following question of great public importance to this Court, which is applicable to the case at hand and also pending before this Court in case number SC15-2079: "Whether a defendant whose initial sentence for a non-homocide crime violates Graham v. Florida, and who is resentenced to concurrent forty-five year terms, is entitled to a new resentencing under the framework established in chapter 2014-220, Laws of Florida?" Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015).
5. Thus, since Peterson, Collins, and Kelsey concern the same issues/questions raised in the instant case and they are currently pending before this Court, the State of Florida respectfully requests that this Court stay these proceedings pending final resolution of those cases.
WHEREFORE, Respondent, the State of Florida, respectfully requests that this Court stay proceedings in this Court in the above-styled case pending final resolution of Kelsey v. State, SC15-2079, Collins v. State, SC16-716, and Peterson v. State, SC16-1211.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida
s/Cynthia L. Comras
Cynthia L. Comras
Assistant Attorney General
Florida Bar No.: 0151319
1515 North Flagler Drive, 9th Floor
West Palm Beach, Florida 33401
Telephone: (561) 837-5016
CrimAppWPB@myfloridalegal.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing was sent by email to: Peggy Natale, Assistant Public Defender, at appeals@pd15.state.fl.us, mnatale@pd15.state.fl.us; Fifteenth Judicial Circuit, 421 Third Street, West Palm Beach, FL 33401 on October 13, 2016.
s/Cynthia L. Comras
Cynthia L. Comras