Reviewing Florida's struggles to deal with SCOTUS Miller ruling

The Miami Herald has this notable new article headlined "State courts struggle with Supreme Court ruling on young killers." Here are excerpts:

Five months ago, the U.S. Supreme Court banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder. But since the Miller v. Alabama decision, Florida courts have struggled to apply the ruling — and two Miami-Dade cases may help settle key lingering legal questions.

Does the ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.

When a judge last month gave convicted killer Benito Santiago 60 years in prison — making him the first South Florida juvenile sentenced after Miller — prosecutors immediately vowed to appeal, saying the sentence was illegal....

The Supreme Court never explicitly said Miller should apply to past convictions for juveniles. Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center.  At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office.  So far, none have been resentenced.

Within days of the Miller decision, defendants across the state began asking courts to get new sentencing hearings.  Some prosecutors assumed the decision would be retroactive.

In Tallahassee, the Attorney General’s Office even agreed that “relief is appropriate” in the 2008 case of then 17-year-old Jose Gonzalez, who stabbed a man to death during a robbery, according to court documents.

In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000. After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.

But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.” The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences....

The Miami appeals court’s decision surprised legal observers — because Geter represented himself. The court did not ask lawyers on either side to lay out their arguments. “Everybody was shocked and dismayed,” said Ilona Prieto Vila, director of Barry’s resource center. “It kind of came out of the blue. You have a right to counsel in Florida and there was a lot of confusion about what happened and why he did not have an attorney.”

Immediately, hearings for new sentences halted in trial courts around Florida. A Tallahassee appeals court, in the Gonzalez case, last month agreed with the Geter decision. Legal observers believe the “retroactivity” issue will be settled in higher courts....

Higher courts, at least in Florida, and possibly the Legislature itself will likely also have to settle the question of the proper sentence for juveniles convicted after the Miller decision. Santiago’s was the first South Florida murder case to go to sentencing after the Miller decision. He was 17 when he used an AK-47 to mow down a man and woman in Liberty City in 2006. Their young daughter identified the killer because of his distinct face cross tattoos. Miami-Dade jurors in August convicted him of two counts of first-degree murder....

Venzer did not let him off easy: 60 years. Miami-Dade prosecutors say they will appeal. The reason: According to the Florida Prosecuting Attorneys Association, first-degree murder sentences now must “revert” back to before the sentencing laws were changed in 1994. That means youths convicted of first-degree murder should get an automatic life sentence — but with the chance for parole after 25 years.

The state long ago effectively abolished the parole system, but a commission still exists to examine longtime inmates eligible for release because their cases date back to the early 1980s or before. “The parole commission was never eliminated,” said Pensacola State Attorney William Eddins, the head of the prosecutors’ association. “The commission will just have some more cases is what it amounts to.”

Critics, including the Public Defender’s Office, say courts don’t have the authority to “enact a new, hybrid statute.”

Though not mentioned in this article, another good example of Florida's struggles with Miller is reflected in another appellate decision just last week in Washington v. Florida, No. 1D11-2314 (Fla. 1st Dist. App. Nov. 5, 2012) (available here). The majority opinion in this case just remands a juve murder case for resentencing, and the concurrring opinion gets started this way: 

I concur in the majority's decision to remand for resentencing pursuant to the dictates of Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012).  I disagree, however, with the majority’s decision not to determine which are the appropriate sentencing alternatives available to this trial judge.  The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.