Herbert Michel v. State

PER CURIAM. In this appeal, defendant challenges his conviction for attempted first degree murder with a firearm, arguing that (1) trial counsel’s failure to renew his Melbourne 1 objections amounts to ineffective assistance of counsel that is apparent from the face of the record; (2) the trial judge denied him a fair trial by assuming the role of prosecutor; and (3) his forty-year prison sentence, which was ordered to be served consecutively to a previously-imposed nineteen-year sentence, runs afoul of the principles in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm as to points (1) and (2) without further comment. As for defendant’s Graham argument, consistent with our prior decisions on this matter, we hold that Graham does not preclude a term-of-years sentence, even where such sentence amounts to a “de facto” life sentence. See Guzman v. State, 110 So.3d 480, 483 (Fla. 4th DCA 2013) (‘While we understand the temptation to acknowledge that certain term-of-years sentences might constitute ‘de facto’ life sentences, we are compelled to apply Graham as it is expressly worded, which applies only to actual life sentences without parole.”). We recognize that the First District has taken a contrary view, and, consistent with our prior decisions, we certify conflict with Thomas v. State, 78 So.3d 644, 646-47 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court: 1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OFYEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES? 2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE? See, e.g., Cameron v. State, 144 So.3d 631 (Fla. 4th DCA 2014); Bucknor v. State, 138 So.3d 546 (Fla. 4th DCA 2014); Tindall v. State, 138 So.3d 545 (Fla. 4th DCA 2014). Affirmed; conflict certified; questions certified. STEVENSON, MAY and KLINGENSMITH, JJ., concur. Footnotes [1] Melbourne v. State, 679 So.2d 759 (Fla. 1996).