5D08-3779 5D10-3021 Leighdon Henry v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-3779

Case Date: 01/16/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

LEIGHDON HENRY, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 20, 2012 Appeal from the Circuit Court for Orange County, Julie H. O'Kane, Judge. Leighdon Henry, Jasper, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee. Gerard F. Glynn, Barry University School of Law, Orlando, Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, Amici Curiae of The Juvenile Life Without Parole Defense Resource Center and The Florida Association of Criminal Defense Lawyers in Support of Appellant Henry. GRIFFIN, J. Leighdon Henry ["Henry"] pro se appeals his judgment and sentence for three counts of sexual battery with a deadly weapon or physical force, one count of kidnapping with intent to commit a felony (with a firearm), two counts of robbery, one count of carjacking, one count of burglary of a dwelling, and one count of possession of twenty grams or less of cannabis. We find no error and affirm without comment on all issues except one. Henry contends that the sentences he received violate the Case Nos. 5D08-3779 & 5D10-3021

constitutional prohibition against cruel and unusual punishment in light of the United States Supreme Court's decision in Graham v. Florida, 130 S. Ct. 2011 (2010). At the time of his offenses, Henry was seventeen years old. Henry's convictions and sentences arose from the following facts: The victim entered her apartment and found her sliding door had been opened. She saw a

stranger, Henry, standing in the hallway. She tried to run, but he grabbed her from behind, causing her to fall and injure her face. Henry put his hand over her mouth and told her to be quiet. He then showed her a gun and told her to get up. He took her into her bedroom, showed her the gun and slapped her face. He licked her genitals,

penetrated her vagina and anus and put his penis in her mouth. He then made her shower. Henry took food from the victim's kitchen and forced her to take him to an ATM machine and withdraw money. The victim was able to get away after they left the ATM. At the time of his sentencing on October 17, 2008, the trial court found that Henry qualified as a sexual predator, and sentenced him as follows: Counts I, II, & III (sexual battery with a deadly weapon or physical force) - natural life on each count, Count V (kidnapping with intent to commit a felony) - thirty years, Count VI (robbery) - fifteen years, Count VII (carjacking) - thirty years, Count VIII (robbery) fifteen years, Count IX (burglary of a dwelling) - fifteen years, and Count X (possession of 20 grams or less of cannabis (marijuana) - 364 days in jail with credit for 364 time served. Counts I, II, III, V, and VI were ordered to run concurrently with each other; Counts VII, VIII, and IX were ordered to run consecutively with each other as well as consecutively to Counts I, II, III, V, and VI; and Count X was ordered to run concurrently to Count I. Thereafter, on October 20, 2008, the trial court entered an order, nunc pro tunc, correcting sentencing

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with respect to Count V, in which it directed that no minimum mandatory be imposed, pursuant to the jury verdict. Henry filed a notice of appeal on October 24, 2008. Thereafter, Henry filed a rule 3.800(b) motion, and an amended rule 3.800(b) motion, to correct sentencing error, in which he argued that the imposition of life sentences constituted cruel and unusual punishment under Graham. After conducting a hearing, the trial court granted Henry's motion and entered an order re-sentencing Henry on the sexual battery counts to thirty years on each count concurrent to each other, but consecutive to the remaining counts. Thus, Henry was sentenced to a total of ninety years in prison. In all other respects, the sentencing remained the same. In this appeal, Henry contends that his current sentence constitutes a de facto sentence of life without the possibility of parole and that such a sentence meets the test of cruel and unusual punishment under Graham. Although the time that Henry is to serve can be shortened through incentive and meritorious gain-time, under Florida law, he must serve eighty-five percent; therefore, Henry should serve at least 76.5 years.1 Henry has filed a National Vital Statistics Report as supplemental authority, suggesting that his life expectancy at birth by race and sex is 64.3 years. Henry argues that

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Section 921.002(1)(e), Florida Statutes, provides: The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 percent of his or her term of imprisonment as provided in s. 944.275(4)(b) 3. The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.

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because he is going to have to serve more years in prison than, statistically, he is expected to live, his sentence is an unconstitutional de facto life sentence. In Graham, the United States Supreme Court addressed the issue of "whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime." 130 S. Ct. at 2017-18. The State of Florida imposed such a sentence, and the defendant "challenge[d] the sentence under the Eighth Amendment's Cruel and Unusual Punishments Clause, made applicable to the States by the Due Process Clause of the Fourteenth Amendment." Id. at 2018. After the defendant was found to have "violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity," he was adjudicated guilty of the earlier charges of armed burglary and attempted armed robbery for which he had been serving probation. Id. at 2019-20. The trial court "sentenced him to the maximum sentence authorized by law on each charge: life imprisonment for the armed burglary and 15 years for the attempted armed robbery." Id. at 2020. Importantly, "[b]ecause Florida . . . abolished its parole system, see Fla. Stat.

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