author: LABARGA, C.J. LAWSON, J., LEWIS, J., CANADY, J.,

text:
    In the Interest of: B.R.C.M., a Minor Child, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. SC16-179
    Supreme Court of Florida.
    [April 20, 2017]

      Ricardo Rodriguez and Mary M. Gund-rum of Immigrant Children’s Justice Clinic, Florida International University College of Law, Miami, Florida; and Steven Hadjilogiou and Angela Vigil of Baker & McKenzie, Miami, Florida, for Petitioner
    Stephanie C. Zimmerman, Deputy Director & Statewide Director of Appeals, Children’s Legal Services, Bradenton, Florida; and Karla Perkins, Appellate Counsel, Children’s Legal Services, Miami, Florida, for Respondent
    Bernard P. Perlmutter of Children & Youth Law Clinic, University of Miami School of Law, Coral Gables, Florida; and Whitney M. Untiedt of Akerman LLP, Miami, Florida, for Amicus Curiae Florida’s Children First
    Rebecca Sharpless and Romy Lerner of Immigration Clinic, University of Miami School of Law, Coral Gables, Florida; and Robert Latham, Bernard Perlmutter, and Kele Stewart of Children & Youth Law Clinic, University of Miami School of Law, Coral Gables, Florida; and JoNel Newman and Melissa Swain of Health Rights Clinic, University of Miami School of Law, Coral Gables, Florida, for Amici Curiae University of Miami School of Law Children & Youth Clinic, Health Rights Clinic, and Immigration Clinic
   LABARGA, C.J.

B.R.C.M., a minor child, seeks review of the decision of the Third District Court of Appeal in In re B.R.C.M., 182 So.3d 749 (Fla. 3d DCA 2015), on the ground that it expressly and directly conflicts with the decision of another district court of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

BACKGROUND

B.R.C.M., an unaccompanied minor from Guatemala, illegally entered the United States at age thirteen and was released by the Office of Refugee Resettlement to his godmother as a sponsor. After his arrival, a private petition was filed on behalf of B.R.C.M. alleging three grounds for adjudication of dependency under section 39.01(15), Florida Statutes (2014), which defines a dependent child as a child who is found by the court: “(a) [t]o have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians”; “(e) [t]o have no parent or legal custodians capable of providing supervision and care”; or “(f) [t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” In support of a determination of dependency, the petition asserted that B.R.C.M.’s father abandoned him at birth and never provided him with food, shelter, clothing, and medical care. The petition asserted that B.R.C.M.’s mother abandoned him at age four when she disappeared and never contacted him again or provided him with basic necessities. B.R.C.M. then went to live with his grandmother until she was no longer able to care for him because of old age and illness. At age thirteen, fearing he would be forced to join a local gang and having no family to care for him, B.R.C.M. fled Guatemala, travelled through Mexico, and entered the United States in Hidalgo, Texas. The petition asserted that B.R.C.M. was placed with his godmother in Miami, Florida, and met his father for the first time after his arrival in the United States. His father has maintained telephone contact with B.R.C.M., but has not provided for the child’s basic needs. The petition was denied after an eight-minute hearing in the circuit court, during which the court made no factual findings.

On appeal, the Third District repeatedly observed that the child’s sole purpose in filing the dependency petition was to facilitate an application for Special Immigrant Juvenile Status (SUS) and seek lawful permanent residency. In re B.R.C.M., 182 So.3d at 751. The district court determined it was “plain on the face of the petition that B.R.C.M. is not ‘truly’ abandoned, abused or neglected within the meaning of Chapter 39,” and despite acknowledging that “[a] godmother is neither a parent nor legal custodian under the statute,” affirmed the summary denial of the petition. Id. at 751-52, 754. The court concluded: “The purpose of the dependency laws of this state is to protect and serve children and families in need, not those with a different agenda,” Id. at 754 (quoting In re K.B.L.V., 176 So.3d 297, 301 (Fla. 3d DCA 2015) (Shepherd, J., specially concurring)).

ANALYSIS

The Third District’s conclusion—that B.R.C.M. was not entitled to the protections of Chapter 39 because he is not “truly” abandoned, abused, or neglected and that his petition was filed for the sole purpose of seeking an immigration status—expressly conflicts with the decision of the First District in In re Y.V., 160 So.3d 576 (Fla. 1st DCA 2015).

In In re Y.V., the First District reversed the summary dismissal of a private petition for dependency where the petition set forth the applicable grounds for dependency and alleged sufficient facts, warranting an adjudicatory hearing. The First District stated the express purpose of Chapter 39 as set forth by the Legislature; identified the appropriate form and contents of a dependency petition; and recognized that the applicable law, section 39.01(15), Florida Statutes (2013), provides seven independent grounds for adjudicating a child dependent. Id. at 578. Additionally, the First District declared that “[a]n intent to obtain [SIJS] says nothing in and of itself regarding the facial sufficiency of the dependency allegations ... [therefore, a petition for dependency should not be rejected in Florida based on the mere motivation of the petitioner.” Id. at 581.

The purpose of Chapter 39 is “[t]o provide for the care, safety, and protection of children ...; to ensure secure and safe custody; to promote the health and well-being of all children under the state’s care; and to prevent the occurrence of child abuse, neglect, and abandonment.” § 39.001(1)(a), Fla. Stat. (2014). Consistent with this purpose, section 39.01(15) provides seven independent grounds upon which a child may be adjudicated dependent. “[W]hen a Florida court is presented with a dependency petition, the court’s concern should be whether the allegations made in support of an adjudication of dependency satisfy Florida’s statutory grounds for such an adjudication, not whether the [juvenile] hopes to obtain [SUS].” O.I.C.L. v. Dep’t of Children & Families, 205 So.3d 575, 578 (Fla. 2016) (quoting In re Y.V., 160 So.3d at 581). “[I]f a child qualifies for a declaration of dependency under our statutes, the child’s motivation to obtain legal residency ... is irrelevant.” F.L.M. v. Dep’t of Children & Families, 912 So.2d 1264, 1269 (Fla. 4th DCA 2005). Moreover, “[i]f federal law grants a right to alien children to regularize their immigration status by first obtaining a state court adjudication of dependency, then there is no basis for failing to declare a child dependent so long as he or she meets the statutory criteria for dependency.” Id.

In his dissent in In re B.R.C.M., Judge Salter identified the trend toward summary denials of dependency petitions by immigrant juveniles based on a belief or conclusion that the juveniles are not entitled to adjudicative findings because they are only seeking immigration relief, not state assistance following abuse, abandonment, or neglect. 182 So.3d at 764 (Salter, J., dissenting). The dissent observed: “the recent spate of summary denial orders in the trial court and per curiam affirmances in [the Third District] suggest a categorical rejection of such petitions rather than the usual individualized evidentiary hearings and written findings of fact.” Id. (Salter, J., dissenting). We disapprove of the categorical summary denial of dependency petitions filed by immigrant juveniles, and find no authority in the statutory scheme that allows for dismissal or denial without factual findings by the circuit court.

In this case, the dependency petition was filed on behalf of B.R.C.M. by next friends having personal knowledge of the facts alleged, in accordance with Florida dependency law and procedure. The petition asserted three grounds for dependency under section 39.01(15), and alleged sufficient facts, establishing a prima facie case. Nonetheless, the Department of Children and Families did not investigate the allegations in the petition, and it was denied after a brief hearing in which no evidence was presented and no fact-finding resulted. See id. at 755-56 (Salter, J., dissenting).

When a petition for dependency alleges specific facts supporting a finding of dependency under any of the seven statutory grounds, the circuit court must make individualized factual findings and apply the law to the facts in order to make a proper adjudication of dependency. See id. at 766 (Salter, J., dissenting) (“Florida circuit courts should enter findings of fact and conclusions of law that address each juvenile petitioner’s individual claims,”). “If the petition states a prima facie case, the petitioner should be permitted to introduce evidence in support of his or her claims, and the court should enter specific adjudicative findings responsive to the issues presented by the petition and the evidentiary record.” Id. (Salter, J., dissenting). If a child meets the statutory criteria for dependency, the child must be adjudicated accordingly, regardless of the child’s motivations for seeking a dependency adjudication. Whether the petition seeks an adjudication to assist the child in applying for an immigration status under federal law is not a basis for summarily dismissing or denying the petition. See id. at 755 (Salter, J., dissenting). The determination of whether an immigrant juvenile may obtain SIJS is reserved for the federal immigration authorities. See In re Y.V., 160 So.3d at 581.

Because the Third District approved the summary denial of B.R.C.M.’s petition on the basis that his purpose was to seek lawful permanent residency, and determined that he was not “truly” needy without any factual record or evidence regarding the child’s circumstances, we quash the decision below.

CONCLUSION

We agree with the dissent below that “B.R.C.M.’s ‘private petition’ for dependency ... warrants individualized consideration and adjudication rather than summary denial.” In re B.R.C.M., 182 So.3d at 754-55 (Salter, J., dissenting). Accordingly, we quash the decision of the Third District and remand the case for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, J., concurs.

LAWSON, J., concurs specially with an opinion.

LEWIS, J., concurs in result with an opinion.

CANADY, J., dissents with an opinion, in which QUINCE and POLSTON, JJ., concur.

LAWSON, J.,

specially concurring.

I write separately to acknowledge that Justice Canady and those joining his dissent make some valid observations, with which I do not disagree. However, the dissent also appears to agree that there is an express and direct conflict between the Third District’s decision in In re B.R.C.M., 182 So.3d 749 (Fla. 3d DCA 2015), and the First District’s decision in In re Y.V., 160 So.3d 576 (Fla. 1st DCA 2015). The dissent further disagrees with portions of the Third District’s analysis; agrees with portions of the First District’s opinion; and appears to agree with the rule announced by this Court on the conflict issue: namely, that private dependency petitions cannot simply be summarily and categorically denied because they appear to be motivated by a desire to gain immigration relief for the child.

Unlike the dissent, I prefer to reach the conflict issue rather than essentially approve the result reached by the Third District on the alternative ground that the petition could have been dismissed based upon pleading deficiencies. The general rule is that a pleading should not be dismissed without leave to amend unless the privilége to amend “has been abused” or amendment would be “futile,” i.e., where the pleading deficiencies cannot be cured. Price v. Miller & Solomon Gen. Contractors, Inc., 104 So.3d 1251, 1252 (Fla. 4th DCA 2013). Because it is clear that the trial judge here would have dismissed this petition irrespective of any attempt to amend, I believe the conflict issue to be ripe for decision. See, e.g., State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006) (noting that the law does not require futile acts to preserve error for review). I also agree with Justice Lewis that immediate legislative attention and clarification is needed in this area.'Otherwise, the courts of this State will continue to expend valuable resources trying to figure out whether and how to apply our dependency statute to facts that do not appear to have even been contemplated when it was enacted.

LEWIS, J.,

concurring in result.

Although I cannot agree with the summary nature of the proceedings below, I do agree with the multiple district courts in Florida, including the Third District which have essentially held that the structure of statutory dependency in Florida cannot and should not be allowed to be transformed into an immigration processing system which is strictly reserved for our federal immigration authorities. The problems generated by this approach seem to be widely increasing and need legislative attention and clarification immediately.

CANADY, J.,

dissenting.

Although I do not agree with certain elements of the Third District’s reasoning in In re B.R.C.M., 182 So.3d 749 (Fla. 3d DCA 2015), I nonetheless would approve the result reached in that decision. Under the pertinent provisions of chapter 39, Florida Statutes, B.R.C.M.’s dependency petition was not sufficient to state a prima facie case of dependency. Accordingly, dismissal of the petition was warranted.

I agree with the majority that “[i]f a child meets the statutory criteria for dependency, the child must be adjudicated accordingly, regardless of the child’s motivations for seeking a dependency adjudication” and that “[wjhether the petition seeks an adjudication to assist the child in applying for an immigration status under federal law is not a basis for summarily dismissing or denying the petition.” Majority op. at 1223. I also agree with the majority that “[i]f the petition states a prima facie case, the petitioner should be permitted to introduce evidence in support of his or her claims, and the court should enter specific adjudicative findings responsive to the issues presented by the petition and the evidentiary record.” Id. at 1223 (quoting In re B.R.C.M., 182 So.3d at 766 (Salter, J., dissenting)). But I disagree with the conclusion that the petition filed in this case is sufficient to establish a prima facie case of dependency. Based on the facts alleged and the grounds pleaded in the petition, the Petitioner failed to pass the threshold requirement for an eviden-tiary hearing.

The Petitioner argues here that a determination of dependency is justified on three separate grounds. One of those grounds, however, was not pleaded in the petition. And the facts alleged in the petition are not sufficient to show a prima facie case under either of the other two grounds on which the Petitioner relies.

The petition is devoid of any claim for a determination that B.R.C.M. is a dependent child on the ground enumerated in section 39.01(15)(e), Florida Statutes (2014)—that is, as a child found “[t]o have no parent or legal custodians capable of providing supervision and care.” In the absence of a claim in the petition that dependency exists and should be adjudicated on this specific ground, this basis for determining dependency has never been properly at issue in this case. Requiring an evidentiary hearing regarding this un-pleaded claim is totally unjustified.

Nor is an evidentiary hearing justified on the other two grounds asserted by the Petitioner. The facts alleged in the petition do not establish a prima facie case that B.R.C.M. is a dependent child on the grounds enumerated in either section 39.01(15)(a), as a child found “[t]o have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians,” or section 39.01(15)(f), as a child found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” Understanding the insufficiency of the claims made on these two grounds requires a journey through the definitional maze of section 39.01. The dependency claim here relates to abandonment and neglect—not to abuse. And the insufficiency of that claim turns at least in part on elements of the statutory definitions of abandonment and neglect. The insufficiency is also indicated by the way the basic definitional term at issue here is framed: “[cjhild who is found to be dependent.” § 39.01(15), Fla. Stat. (2014). The very term itself suggests a determination based on circumstances that are not temporally remote. Such a determination thus could not be based on the circumstances in Guatemala years ago that are alleged in the petition.

Abandonment is defined in section 39.01(1) as

a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

The allegations of abandonment in the petition fail to pass muster under this definition for two reasons. Even to the extent that the conduct of the Petitioner’s parents in Guatemala might be considered a proper focus, the petition contains no allegations that the parents were able to do anything to remedy their failures regarding the care of B.R.C.M. More to the point, there is no allegation of any deficiency on the part of the caregiver—B.R.C.M.’s godmother—to whom B.R.C.M. has been entrusted by the federal government. Indeed, B.R.C.M. seeks to remain in the custody of the caregiver.

It is not subject to dispute that under federal law B.R.C.M. is in the custody of the government of the United States, which has ultimate responsibility for his well-being. The person to whom B.R.C.M. has been entrusted by the federal government is properly deemed a caregiver within the meaning of section 39.01. The definition of caregiver in section 39.01(10) includes a “person responsible for a child’s welfare as defined in subsection (47).” Section 39.01(47) includes within the various categories specified a broad reference to “any other person legally responsible for the child’s welfare in a residential setting.” B.R.C.M.’s godmother has necessarily undertaken obligations as a condition for the placement of B.R.C.M. with her “in a residential setting” by the federal government that readily bring her within this category.

Regarding the allegations of neglect, as with the allegations of abandonment, there is no claim that the godmother has in any way neglected B.R.C.M. And regarding the allegations concerning the parents, the dependency claim runs aground on the provision contained in section 39.01(44)’s definition of neglect that circumstances depriving a child of proper care “shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person.” The allegations of the petition contain not a hint that the circumstances affecting B.R.C.M.’s family in Guatemala were the result of anything other than “financial inability.” Further, as previously mentioned, it is questionable that allegations of such temporally remote circumstances are a proper predicate for an adjudication of current dependency.

The allegations of the petition also fail to support the claim under section 39.01(15)(f) that B.R.C.M. is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” This claim is based on the specter of deportation and the circumstances that B.R.C.M. might face in Guatemala after being deported. As a practical matter, it seems virtually certain that any return of B.R.C.M. to Guatemala would occur only when B.R.C.M. is an adult. In any event, leaving that practical matter aside, the allegations of the petition simply do not show an “imminent” risk of anything. The allegations rest on nothing more than speculation that the federal government might deport B.R.C.M. Beyond the fact that the requirement that an “imminent” risk be established has not been met, it is a dubious proposition that section 39.01(15) is designed to protect against actions of the federal government under the immigration laws.

The decision of the First District in In re Y.V., 160 So.3d 576, 579 (Fla. 1st DCA 2015), correctly recognizes that “the federal and state statutory scheme currently in place ... provides a pathway for undocumented children who have been abused, abandoned, or neglected to obtain lawful permanent residency in the United States” (citing 8 U.S.C. § 1101 (a) (27)( J); § 39.5075, Fla. Stat. (2013)). But the dependency claims regarding such children must be evaluated based on the specific requirements of the dependency statute. And not every undocumented child will necessarily meet the requirements for a determination of dependency. Here, those requirements have not been met. Further, it is by no means clear that section 39.5075—which in subsection (4) authorizes Florida courts to issue orders “finding that [a dependent] child meets the criteria for special immigrant juvenile status” under federal law—applies to private petitions seeking such a finding. Section 39.5075(4) refers specifically to petitions submitted by “the department or community-based care provider” as distinct from private petitions.

QUINCE and POLSTON, JJ., concur.

      . We recognize that B.R.C.M. appears to reside with his godmother, who as a sponsor, is entrusted with his care and custody by the federal government. The sponsor care agreement encourages sponsors who are neither parents nor legal guardians to establish legal guardianship with the local court. We observe that Florida courts have exclusive jurisdiction of all proceedings relating to child welfare. An adjudication of dependency would not preclude B.R.C.M, from continued care by his godmother, but would ensure appropriate placement for the child, consistent with the permanency goals of Chapter 39 of the Florida Statutes.

      . "All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by an attorney for the department, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.” § 39.501(1), Fla. Stat. (2014). See Fla. R. Juv. P. 8.201(a)(2).

      . Each dependency petition shall "allege sufficient facts showing the child to be dependent based upon applicable law.” Fla. R. Juv. P. 8.310(a)(1).


source: Caselaw Access Project

author: LABARGA, C.J.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Nicolas DOMINIQUE, Respondent.
    No. SC15-1613
    Supreme Court of Florida.
    March 30, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia A. Terenzio, Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, Florida, for Petitioner
    Carey Haughwout, Public Defender, Richard B. Greene, and Patrick B. Burke, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Respondent
   LABARGA, C.J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Dominique v. State (Dominique II), 171 So.3d 204 (Fla. 4th DCA 2015). The district court certified that its decision is in express and direct conflict with the decision of the Third District Court of Appeal in Dawkins v. State, 170 So.3d 81 (Fla. 3d DCA 2015). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons we explain, we quash the decision in Dominique II and approve the decision in Dawkins.

FACTS AND PROCEDURAL BACKGROUND

Nicolas Dominique was charged with first-degree murder and ultimately convicted of the second-degree murder of Dwayne Clementson. Dominique II, 171 So.3d at 204. The district court provided a brief summary of the facts as follows:

At the trial, the state presented evidence that the defendant was outside of his former girlfriend’s house when her new boyfriend arrived by car. When the new boyfriend exited his car, the defendant chased the new boyfriend down the street while firing a gun, shooting the new boyfriend in the leg which caused him to fall, and then shooting the new boyfriend in the back of the head, killing him.
The state argued that the defendant’s actions constituted first-degree murder. The defendant argued that his actions in chasing the new boyfriend down the street while firing his gun was [sic], at worst, manslaughter by culpable negligence.
The trial court instructed the jury on first-degree murder, second-degree murder, manslaughter by act, and manslaughter by culpable negligence. The jury found the defendant guilty of second-degree murder.

Id. at 204-05.

Dominique’s jury was instructed on the lesser included offense of manslaughter by act with the same instruction that this Court found to be fundamentally erroneous in State v. Montgomery, 39 So.3d 252 (Fla. 2010), which instructed the jury that to convict for manslaughter by act, the jury must find that the defendant intentionally caused the death of the victim—a finding of an intent to kill that was not an element of the offense of manslaughter by act. On direct appeal, Dominique argued that he was entitled to relief in light of Montgomery, but the Fourth District disagreed and affirmed. See Dominique II, 171 So.3d at 205. The Fourth District rejected the fundamental error claim based on the fact that the trial court also instructed the jury on the lesser included offense of manslaughter by culpable negligence. See Dominique v. State (Dominique I), 40 So.3d 33, 36 (Fla. 4th DCA 2010).

The case then came to this Court on petition for review of the decision in Dominique I. However, we stayed that case pending the disposition of the review of the decision of the Second District Court of Appeal in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), which was then before this Court. Our decision in Haygood v. State, 109 So.3d 735 (Fla. 2013), was subsequently issued and held that the fundamental error caused by the erroneous Montgomery manslaughter by act instruction was not cured by giving the instruction on manslaughter by culpable negligence where there was no evidence from which a jury could reasonably convict of manslaughter by culpable negligence. See id. at 743. After our decision in Haygood was issued, and upon review of the response to this Court’s Order to Show Cause, we granted the petition for review, summarily quashed the decision of the Fourth District in Dominique I, and remanded to the district court for reconsideration in light of our decision in Haygood. See Dominique v. State, 160 So.3d 894 (Fla. 2014) (table report of unpublished order).

On remand, the Fourth District reversed the conviction and held that fundamental error occurred in the giving of the jury instruction for manslaughter by act, requiring a new trial. Dominique II, 171 So.3d at 204. The Fourth District interpreted our decision in Haygood to require a new trial any time the erroneous manslaughter by act instruction is given and the defendant is convicted of an offense not more than one step removed from manslaughter—regardless of whether the evidence could support a finding of manslaughter by culpable negligence. The district court certified express and direct conflict with Dawkins v. State, 170 So.3d 81, 81 (Fla. 3d DCA 2015), and the State sought review of Dominique II in this Court based on that certified conflict.

In this case, the State contends that the Fourth District in Dominique II misreads Haygood and other cases following Montgomery to incorrectly hold that the erroneous manslaughter by act instruction is fundamental error in all cases, regardless of whether the manslaughter by culpable negligence instruction is given and regardless of whether there is evidence that reasonably supports manslaughter by culpable negligence. Thus, this iteration of a Montgomery challenge focuses on the district court’s interpretation of this Court’s decision in Haygood.

The Fourth District concluded that this Court’s evolution from Montgomery to Haygood to Griffin demonstrates that giving the manslaughter by act instruction is per se reversible error, even where there is evidence that could support a finding of manslaughter by culpable negligence. The court stated that the culpable negligence instruction “cannot under any circumstance cure” the error created by the faulty manslaughter by act instruction because the error is always pertinent or material to what the jury had to consider to convict the defendant of manslaughter. Dominique II, 171 So.3d at 207. The district court also noted, “We recognize the state’s factual distinction from Haygood that giving the erroneous manslaughter by act instruction is fundamental error where the evidence does not support the accompanying manslaughter by culpable negligence instruction, whereas here the evidence arguably supported the accompanying manslaughter by culpable negligence instruction.” Id. at 205. Nevertheless, the district court went on to find the error fundamental and per se reversible. The Fourth District explained:

In contrast to the Third District [in Dawkins], under our reading of the evolving precedent from Montgomery to Haygood to Griffin, giving the manslaughter by culpable negligence instruction cannot under any circumstance cure the fundamental error caused by giving the erroneous manslaughter by act instruction, even where the evidence reasonably could support a finding of manslaughter by culpable negligence.

Id. at 207 (bracketed material added). Dawkins held that “where the jury was also instructed in manslaughter by culpable negligence and the evidence could reasonably support so finding, the error in giving the flawed Montgomery manslaughter by act instructions was not per se fundamental error.” 170 So.3d at 83. Thus, the Fourth District certified conflict with Dawkins. Before resolving the certified conflict, we review our decision in Haygood, which is central to this case.

Haygood v. State

In 2013, this Court issued its decision in Haygood, which is yet another case arising out of a Montgomery fundamental error claim. In Haygood, we stated:

We hold that giving the erroneous manslaughter by act instruction, which we found to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla. 2010), is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder.

Haygood, 109 So.3d at 737 (footnote omitted) (emphasis added). In Montgomery, we held that the standard jury instruction on manslaughter by act was erroneous because it imposed an element of an intent to kill not contained in section 782.07, Florida Statutes (2005), the manslaughter statute. The error was found to be fundamental in Montgomery, where the defendant was charged with first-degree murder but was convicted of second-degree murder, only one step removed from manslaughter. Montgomery, 39 So.3d at 260. We reiterated in Montgomery that the erroneous jury instruction was fundamental error because it was “pertinent or material to what the jury must consider in order to convict” and it pertained to an element of the crime that was in dispute. Montgomery, 39 So.3d at 258 (quoting State v. Delva, 575 So.2d 643, 645 (Fla. 1991)). Whether the error could be cured because of the giving of a culpable negligence instruction was not at issue in Montgomery.

In Haygood, we were asked to apply the Montgomery decision to a case in which the erroneous manslaughter by act instruction was given, but where the jury was also instructed on the lesser included offense of manslaughter by culpable negligence. The circumstances of the homicide were the driving factors in determining whether fundamental error occurred by the erroneous instruction or whether also giving the instruction on manslaughter by culpable negligence “cured” the error. We explained in Haygood that the defendant was angry with his girlfriend and beat her, causing her to fall, hit her head, and become unconscious. Haygood, 109 So.3d at 737. At that point, Haygood had his mother call for an ambulance and he attempted to perform CPR. Haygood told police that he had consumed nine beers and was not completely sober, and had hit her in a rage over her infidelity. Id. He said he did not mean to seriously injure her, and called her death an accident because “I didn’t mean to kill her.” Id.

A main consideration by this Court in concluding that the manslaughter by culpable negligence instruction did not cure the erroneous manslaughter by act instruction in Haygood was explained as follows:

The evidence in this case supported a finding that Haygood intentionally committed an act or acts, and that the act or acts resulted in the victim’s death. The evidence also supported a finding that he had no intent to kill the victim. Significantly, there was no evidence to support a finding that Tuckey’s death resulted from culpable negligence. Hay-good’s unambiguous admission that he intended to strike, head butt, choke, and trip Tuckey essentially eliminated the alternate means of committing manslaughter—manslaughter by culpable negligence—as a viable lesser offense. Thus, second-degree murder was the only offense realistically available to the jury under the evidence presented in this case and the instructions given— instructions that required the jury to find intent to kill in order to convict Haygood for manslaughter by act.

Haygood, 109 So.3d at 741-42 (emphasis added). Thus, where second-degree murder is the only viable lesser included offense when the jury finds there is no intent to kill, the error in the manslaughter by act instruction in requiring an intent to cause death is fundamental if the defendant is convicted of second-degree murder, one step removed from manslaughter. In applying both Montgomery and Haygood to a given case in which the defendant is convicted of an offense not more than one step removed from manslaughter, and in which both the erroneous manslaughter by act instruction and the correct manslaughter by culpable negligence instruction are given, the court will examine whether there is any evidence that could “reasonably support a finding that the death occurred due to the culpable negligence of the defendant” in determining whether the fundamental error is cured. Haygood, 109 So.3d at 743. With our decision in Haygood in mind, we turn to an analysis of the issue in this case.

ANALYSIS

Standard of Review

The certified conflict identified by the district court below presents solely a legal question; thus, review is de novo. See Daniels v. State, 121 So.3d 409, 413 (Fla. 2013); Haygood, 109 So.3d at 739 (citing Kirton v. Fields, 997 So.2d 349, 352 (Fla. 2008)). Where, as here, the error is unpreserved, we have repeatedly held that jury instructions are subject to the contemporaneous objection rule and, without an objection, error in an instruction can only be raised as fundamental error on appeal. Daniels, 121 So.3d at 417. Although the defendant has a right to have the jury correctly instructed on the “essential and material elements of the crime charged,” id. (quoting Delva, 575 So.2d at 644), not all errors in jury instructions are fundamental. See Garzon v. State, 980 So.2d 1038, 1042 (Fla. 2008). We explained in Delva:

To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown[ v. State, 124 So.2d 481, 484 (Fla. 1960) ]. In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”

Delva, 575 So.2d at 644-45 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982)). With these standards in mind, and in light of our decision in Haygood, a more detailed review of the evidence and instruction given at trial in this case is necessary.

Discussion

Dominique was charged with and tried for first-degree murder, but was convicted of second-degree murder. The manslaughter instructions given at his trial were as follows:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. Dwayne Clementson is dead.
2. (a) Nicolas Dominique intentionally caused the death of Dwayne Clement-son.
or
(b) The death of Dwayne Clementson was caused by the culpable negligence of Nicolas Dominique.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the Defendant had a premeditated intent to cause death.

No objection was made to the manslaughter instruction as given, even though the manslaughter by act instruction erroneously required the jury to find an intent to kill. See Montgomery, 39 So.3d at 255.

The Fourth District Court of Appeal, on remand from this Court, correctly quoted our Haygood decision by stating:

[Gjiving the erroneous manslaughter by act instruction, which we found to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla. 2010), is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder.

Dominique II, 171 So.3d at 205 (quoting Haygood, 109 So.3d at 737). This portion of the Haygood decision shows that this Court was leaving open the possibility that the error can be cured even when the defendant is convicted of second-degree murder, one step removed from manslaughter, under certain circumstances. Those circumstances include when the instruction for manslaughter by culpable negligence is also given and the evidence reasonably supports a finding of manslaughter by culpable negligence.

The Fourth District in Dominique II also quoted the portion of Haygood that reiterated the principle that fundamental error occurs where “the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider.” 171 So.3d at 205 (quoting Haygood, 109 So.3d at 741). The district court concluded that the factual distinction between cases where the evidence does not support culpable negligence and cases where, as here, the evidence “arguably supported the accompanying manslaughter by culpable negligence instruction” was “not central to the Supreme Court’s reasoning in Haygood.” Id. at 205-06. Thus, the district court in Dominique II held that “under our reading of the evolving precedent from Montgomery to Haygood to Griffin, giving the manslaughter by culpable negligence instruction cannot under any circumstance cure the fundamental error caused by giving the erroneous manslaughter by act instruction, even where the evidence reasonably could support a finding of manslaughter by culpable negligence.” Id. at 207.

In reaching this holding, the district court misapplied our decisions in Haygood and Griffin to the issue of fundamental error under the facts of cases such as this one. The distinction between cases in which there is evidence that could reasonably support manslaughter by culpable negligence and those, like Haygood, where it cannot was indeed central to our decision in Haygood. Although the Fourth District is correct that this Court has held intent is always pertinent or material to what the jury must consider to convict in a homicide prosecution, that statement cannot be considered in isolation when determining if fundamental error in the giving of the erroneous jury instruction for manslaughter by act can ever be cured. Intent is always pertinent in a homicide prosecution and where, as here, the jury concludes there was no intent to kill, the question then arises what nonintentional homicide lesser offenses are available for the jury’s consideration and supported by the evidence. In Haygood, we found fundamental error occurred because manslaughter by act was misinstructed to require an intent to kill and was thus unavailable as a nonin-tentional lesser included offense. The instruction on manslaughter by culpable negligence was given but was not supported by the evidence—'thus not curing the fundamental error created by the erroneous manslaughter by act instruction.

The district court’s reliance on Griffin to explain its holding in this case was also misplaced. First, the issue in Griffin did not turn on the culpable negligence instruction. Instead, the issue was whether a defense of misidentifieation in a homicide prosecution waives all elements of the crime other than identity—including the element of intent. We clarified in Griffin that intent remains in dispute, and remains the burden of the State to prove, in a homicide prosecution even when misidenti-fication is the defense, because intent determines what level of offense has been committed. We explained:

When the question before the jury is whether an unlawful homicide occurred, and the jury finds that the killing was not justifiable or excusable, the jury must then determine the degree of the offense based upon the intent, if any, that the State proves existed at the time of the homicide. A homicide found to be unlawful is not automatically just one offense, but will be one of several possible homicide offenses depending upon the nature of the intent or the lack of any intent at the time of the homicide. For example, if the State has charged first-degree murder, a necessary jury inquiry is whether the State proved premeditated intent to kill. Lacking that proof, the jury must then determine whether the defendant killed “by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.” Fla. Std. Jury Instr. (Crim.) 7.4. “Imminently dangerous to another and demonstrating a depraved mind” is defined in pertinent part as an act that “is done from ill will, hatred, spite, or an evil intent.” If the jury concludes that the killing was neither premeditated nor done with a depraved mind as that term is defined, the jury must then decide if the defendant is guilty of manslaughter by having committed an intentional act that resulted in death, but without any intent to kill or evil intent (depraved mind) on the defendant’s part. Thus, it can be seen that in every killing alleged to be an unlawful homicide, the jury must necessarily consider the intent behind the killing, or find lack of any intent behind the killing, before it can determine what, if any, offense has been committed.

Griffin, 160 So.3d at 68-69. Second, Griffin did not recede sub siientio from Haygood or modify in any respect the principle announced in that case that giving the culpable negligence instruction does not cure the fundamental error created by the erroneous manslaughter by act jury instruction where the evidence does not reasonably support manslaughter by culpable negligence. The converse of this holding, which is applicable here, is that the culpable negligence instruction can cure the fundamental error created by the erroneous manslaughter by act instruction where the evidence does reasonably support manslaughter by culpable negligence.

In the present case, because the manslaughter by culpable negligence instruction was given, the question becomes whether the evidence could support a finding of that nonintentional homicide, thus curing the fundamental error created by the erroneous manslaughter by act instruction. And, as explained in Haygood and other cases concerning fundamental error, the fact that the evidence could arguably support a verdict for second-degree murder, an offense also not requiring an intent to kill, is not determinative of whether fundamental error occurred. See, e.g., Haygood, 109 So.3d at 741.

The instruction for second-degree murder, in part, asks the jury to determine if the killing was the result of an act that was “imminently dangerous to another and demonstrating a depraved mind.” Fla. Std. Jury Instr. (Crim.) 7.4 Murder—Second Degree. This is defined as an act done with “ill will, hatred, spite, or an evil intent” showing “indifference to human life,” and which a person of ordinary intelligence would know is “reasonably certain to kill or do serious bodily injury.” Id.

The instruction for manslaughter by culpable negligence also requires, in part, evidence that the killing was the result of an act showing “reckless disregard of human life” and was an act that the defendant “must have known, or reasonably should have known, was likely to cause death or great bodily injury.” Fla. Std. Jury Instr. (Crim.) 7.7 Manslaughter. In these two respects the offenses have somewhat similar elements. However, as noted above, to convict for second-degree murder, the jury must also find that the actions demonstrate a “depraved mind” which is proven by acts that are “done from ill will, hatred, spite, or an evil intent.” Fla. Std. Jury Instr. (Crim.) 7.4. Manslaughter by culpable negligence has no requirement that the jury find a depraved mind, ill will, hatred, spite, or evil intent. See Fla. Std. Jury Instr. (Crim.) 7.7.

Thus, where a jury determines that the evidence does not prove an intent to Mil, the jury must then determine if any lesser included offense not requiring an intent to kill is available for their consideration and has been proven. Where the instruction on manslaughter by culpable negligence is given as well as the instruction for second-degree murder, the jury will examine the evidence for proof of the level of disregard for safety and human life and for evidence, if any, of an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. Both lesser included offenses lack any requirement of an intent to kill. Whether the defendant is guilty of one or the other will turn in large part on whether the defendant is proved to have committed the homicide with a level of ill will, hatred, spite, or evil intent rising to the level of a depraved mind required for second-degree murder. Therefore, we examine the evidence presented during trial to determine if it reasonably could support a finding by the jury that the Mlling resulted from culpable negligence, thus providing the jury with a viable alternative to second-degree murder that also did not require an intent to Mil.

This Case

Dominique was charged with and prosecuted for first-degree murder. Clearly, the jury did not find a premeditated intent to Mil because he was convicted of second-degree murder, an offense that does not require an intent to Mil. The jury also had the option to find him guilty of manslaughter by culpable negligence, a lesser included offense also not requiring an intent to kill. We have examined the evidence presented at trial and conclude that it reasonably supported the lesser included offense of manslaughter by culpable negligence. Even though the jury was foreclosed from finding Dominique guilty of manslaughter by act due to the erroneous instruction, the jury still had a viable, nonintentional lesser included homicide offense for which he could have been convicted.

The testimony established that on the night of the shooting, Dominique was on the telephone with his girlfriend, Vonshell Lindsay, when she told him their breakup was final and that she was getting back together with Clementson, the victim in this case. At that same moment, Dominique, who was sitting in a borrowed car in Lindsay’s neighborhood, saw Clementson drive toward the house where Lindsay was visiting. Although Dominique was in the neighborhood, he told police it was only to talk with Lindsay, and there was no evidence that Dominique knew Clementson would be there. Dominique told police that he had a gun with him in the car he borrowed from his sister, explaining to police that he usually had it with him. When Dominique started walking toward Lindsay’s house, Clementson drove by him. Dominique told officers that at that point, he grabbed the gun and went after Clementson, firing “a whole bunch of shots” while running. He told police he was shooting wildly without aiming, and that he hoped Clementson was still alive. Witnesses also testified that Dominique was running in the dark while firing with his arm extended. The only witness who saw Dominique actually fire the gun testified first that he took aim, but she almost immediately receded from that testimony and agreed that “[i]t was not like he stood there and [sighted in on] the man before he took the shot.”

We conclude that this evidence reasonably meets the test for “reckless disregard for human life” and that the defendant must have known, or reasonably should have known, that these actions were likely to cause death, as required by the jury instruction for manslaughter by culpable negligence as well as second-degree murder. Certainly, Dominique’s actions demonstrated want of care, wantonness, recklessness, or gross disregard for the safety of others, as is required under both the manslaughter by culpable negligence jury instruction and the instruction for second-degree murder. Accordingly, the jury had before it two viable alternatives, neither of which required an intent to kill. It was for the jury to determine if the evidence rose to the level of depraved mind such that second-degree murder was proven, a conclusion the jury reached in this case.

Because the jury was correctly instructed on manslaughter by culpable negligence, which does not require an intent to kill, the jury did have a nonintentional homicide offense for which they could have convicted Dominique as an alternative to second-degree murder. Under these facts, it cannot be said that “the verdict of guilty [of second-degree murder] could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 645 (bracketed material added) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)). Thus, under Haygood, the fundamental error in giving the erroneous manslaughter by act instruction was cured. For the reasons discussed, we quash the decision in Dominique II. Because this case is before the Court on certified conflict, the certified conflict case of Dawkins is discussed next.

The Certified Conflict Case

The Fourth District in Dominique II certified conflict with the decision of the Third District in Dawkins v. State. In Dawkins, the district court had before it a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel for failure to move for rehearing based on the Third District’s decision in Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), and the Second District’s decision in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), both of which this Court quashed. See Dawkins, 170 So.3d at 82.

The Third District denied the petition in Dawkins. In doing so, the court stated that “where the jury was also instructed in manslaughter by culpable negligence and the evidence could reasonably support so finding, the error in giving the flawed Montgomery manslaughter by act instruction was not per se fundamental error.” Id. at 83. Applying our holding in Haygood, the Dawkins court concluded that there existed some disputed evidence from which the jury reasonably could have found Dawkins guilty of manslaughter by culpable negligence, in contrast to the facts in Haygood. See Dawkins, 170 So.3d at 82. Because the Third District correctly interpreted this Court’s analysis and principle announced in Haygood, the Dawkins decision is approved.

CONCLUSION

The evidence in this case reasonably supported the lesser included offense of manslaughter by culpable negligence. Thus, under Haygood, the giving of the manslaughter by culpable negligence instruction cured the fundamental error in the giving of the erroneous manslaughter by act instruction. Accordingly, we quash the decision of the Fourth District in Dominique v. State, 171 So.3d 204 (Fla. 4th DCA 2015), and remand to the district court with instructions to further remand to the trial court to reinstate the conviction and sentence. We approve the conflict decision of Dawkins v. State, 170 So.3d 81 (Fla. 3d DCA 2015).

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

LAWSON, J., concurs in result only.

      . Griffin v. State. 160 So.3d 63, 70 (Fla. 2015) (holding that the giving of the erroneous manslaughter by act instruction constituted fundamental error where the defendant offered a misidentification defense at trial, which did not concede the element of intent). The Haygood issue was not present in Griffin.

      . On remand, the Third District reversed Cu-belo’s conviction and remanded for a new trial because of the erroneous manslaughter by act instruction. The court concluded that the error was not cured by the culpable negligence instruction because the evidence did support manslaughter by act but did not support manslaughter by culpable negligence. Cubelo v. State, 137 So.3d 1193, 1193 (Fla. 3d DCA 2014).


author: QUINCE, J.

text:
    Clyde Edward JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-711
    Supreme Court of Florida.
    April 20, 2017

      Baya Harrison, III, Monticello, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Wesley Heidt, Bureau Chief, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   QUINCE, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Johnson v. State, 108 So.3d 1153 (Fla. 5th DCA 2013), which certified conflict with the decision of the First District Court of Appeal in Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. For the following reasons, we quash the decision of the Fifth District and remand for proceedings consistent with this opinion.

Clyde Edward Johnson pleaded guilty to one count of armed burglary of a dwelling, three counts of armed kidnapping, one count of attempted first-degree murder, and one count of sexual battery using force or a weapon. He was sentenced to six concurrent life sentences. After the United States Supreme Court issued its decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Johnson filed a motion to correct his illegal sentences. The trial court set aside Johnson’s life sentences and held an evidentiary hearing to support resentencing. On February 12, 2012, the trial judge resentenced Johnson to 100 years in prison for the first count and 40 years on each remaining count, to run concurrently. Johnson appealed the 100-year sentence. The Fifth District Court of Appeal affirmed Johnson’s sentence, stating that Graham does not apply to term-of-years sentences. Johnson, 108 So.3d at 1153-54 (citing Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012)). The Fifth District certified conflict and we granted review.

The United States Supreme Court’s decision in Graham held that Florida’s practice of sentencing juvenile offenders to life sentences for nonhomicide crimes violated the Eighth Amendment to the United States Constitution. Graham, 560 U.S. at 74-75, 130 S.Ct. 2011. In 2014, the Legislature passed chapter 2014-220, Laws of Florida, which provided judicial review for juvenile offenders who were tried as adults and received more than 20 years’ incarceration, with exceptions. Later, this Court, in a unanimous decision, decided that juveniles who receive term-of-years sentences that do not provide a meaningful opportunity for early release based on maturity and rehabilitation during their natural lives are entitled to re-sentencing pursuant to chapter 2014-220, Laws of Florida. Henry v. State, 175 So.3d 675, 680 (Fla. 2015), cert. denied, — U.S. -, 136 S.Ct. 1455, 194 L.Ed.2d 552 (2016). Then, in Kelsey, a majority of this Court applied the reasoning in Henry to juveniles whose life, sentences had been vacated pursuant to Graham, but who had not been resentenced under the new juvenile sentencing guidelines. Kelsey v. State, 206 So.3d 5, 8-9 (Fla. 2016). We conclude that reading these three cases together provides that juvenile nonhomicide offenders are entitled to sentences that provide a meaningful opportunity for early release based on demonstrated maturity and rehabilitation during their natural lifetimes and that gain time fails to meet those requirements.

In this Court’s discussions of Graham, we have underscored the United States Supreme Court’s emphasis on the status of the juvenile nonhomicide offender and the nature of the offense committed. See Henry, 175 So.3d at 678 (citing Graham, 560 U.S. at 69, 130 S.Ct. 2011). Accordingly, our focus has not been on the length of the sentence imposed, but the status of the offender and the possibility that he or she will be able to grow into a contributing member of society. In other words, although Graham focused on life sentences as applied to juveniles, in Henry, we applied Graham’s categorical rule as creating a special class of citizens, to wit: juvenile nonhomicide offenders.

Leighdon Henry, a juvenile offender who was tried as an adult, was convicted of multiple nonhomicide crimes and sentenced to life plus an additional sixty years. Henry, 175 So.3d at 676. After Graham issued, Henry’s life sentence was vacated and he was resentenced to thirty years to run consecutively to the originally imposed sixty year sentence. Id. On appeal, we concluded “Graham prohibits the state trial courts from sentencing juvenile nonhomicide offenders to prison terms that ensure these offenders will be imprisoned without obtaining a meaningful opportunity to obtain future early release during their natural lives based on their demonstrated maturity and rehabilitation.” Id. at 680. We reasoned that the “Supreme Court’s long-held and consistent view that juveniles are different” supported the conclusion that “the specific sentence that a juvenile nonhomicide offender receives for committing a given offense is not dispositive as to whether the prohibition against cruel and unusual punishment is implicated.” H. Accordingly, we determined that Graham was not limited to certain sentences, but rather was intended to ensure that “juvenile nonhomi-cide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation.” Id. In light of this reasoning, we concluded that the Eighth Amendment, as read through Graham, requires a review mechanism for evaluating this class of offenders because “any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.” Id. Our holding in Henry was not predicated on the term of the sentence, but on the status of, and the opportunity afforded, the offender.

In Kelsey, we considered whether the remedy espoused in Henry applied to juvenile offenders who were resentenced from life to term-of-years sentences after Graham, for crimes committed before chapter 2014-220’s July 1, 2014, effective date, but who did not receive the benefit of chapter 2014-220’s review mechanism. Thomas Kelsey was 15 years old when he burglarized an apartment and raped the pregnant victim at knifepoint in the presence of her two small children. Kelsey, 206 So.3d at 6. Kelsey pleaded guilty and received two life sentences and two concurrent twenty-five year terms for four nonhomicide offenses on March 26, 2010. Id. At a resentencing hearing held after the United States Supreme Court issued Graham, the trial court imposed concurrent sentences of forty-five years. Id. at 6-7. The First District affirmed. Id. On review in this Court, we opined, “After we made clear that Graham does indeed apply to term-of-years sentences, we have declined to require that such sentences must be ‘de facto life’ sentences for Graham to apply.” Id. at 10 (citing Guzman v. State, 183 So.3d 1025, 1026 (Fla. 2016)). Accordingly, we have determined that Graham prohibits juvenile nonhomicide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism.

In the present case, Clyde Johnson was originally sentenced to six concurrent life sentences and, after those sentences were set aside pursuant to Graham, resentenced to one 100-year term and five concurrent forty-year terms. On appeal, where Johnson argued that the 100-year term still violated Graham, the Fifth District affirmed, relying solely on its previous opinion in Henry, a decision this Court reversed. See Henry, 175 So.3d at 680. The Johnson opinion, in its entirety, states:

Clyde Edward Johnson challenges his 100-year sentence on a charge of burglary of a dwelling while armed, arguing that the sentence violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), as he was under 18 years old at the time of the offense. [FN1] As our court has already rejected the argument that a term of years sentence violates Graham in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), rev. granted, 107 So.3d 405 (Fla. 2012), we affirm. We certify that this decision conflicts with Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012) and Adams v. State, [188 So.3d 849] (Fla. 1st DCA 2012).
[FN1] Johnson was originally sentenced to life on this charge, and to concurrent life sentences on five related charges: three counts of armed kidnapping to facilitate a felony; one count of attempted first degree murder with a firearm; and, one count of sexual battery using force or a weapon (firearm). All six life sentences were set aside following the United States Supreme Court’s decision in Graham. The 100-year sentence challenged in this appeal was imposed at Johnson’s resentencing. As for the other five counts, the trial court re-sentenced Johnson to concurrent 40-year sentences, which are not challenged on appeal.]

Johnson v. State, 108 So.3d 1153, 1153-54 (Fla. 5th DCA 2013).

The Florida Corrections Code provides several forms of allowable gain time. As defined by this Court:

Gain time is allowed by the state to encourage a prisoner to mend his ways, to conduct himself in an orderly fashion while paying his debt to society and by his conduct to earn the privilege of release earlier than the terminal date fixed by his sentence. A prisoner’s right to accrued gain time is not absolute but is conditioned upon satisfactory service of the sentence as required by the statute.

Nicholas v. Wainwright, 152 So.2d 458, 461 (Fla. 1963) (citation omitted). The statutes permit the accrual, forfeiture, and reinstatement of gain time, with different rules applying based on when an offense was committed, the type of gain time available on the sentence, and the type of offense committed. See §§ 944.275, 944.28, 944.281 Fla. Stat. The Florida Department of Corrections defines gain time as “an inmate’s opportunity to earn a reduction (if eligible) in his/her overall sentence imposed by the court.” Gain time has been in existence in Florida since 1889 and “is a tool the department uses to encourage satisfactory inmate behavior and motivate program and work participation.” Id. In summary, gain time is not defined by the Florida Statutes, the Florida Department of Corrections, or this Court as an opportunity for early release based on demonstrated maturity and rehabilitation. Instead, all three define gain time as merely an opportunity to shorten one’s sentence.

Johnson’s sentences were based on offenses he committed on January 5, 1990, when he was seventeen years old. Under section 944.275, Florida Statutes, Johnson was ineligible for any gain time while he was serving life sentences. § 944.275(4)(b)3., Fla. Stat. (“State prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency.”) Accordingly, from the period of July 6, 1992, when Johnson was first sentenced, and February 2, 2012, when the trial court resentenced him to a term-of-years sentence, Johnson did not accrue gain time. On his newly imposed sentence, Johnson should be eligible for basic gain time at the rate of “10 days for each month of each sentence imposed” and incentive gain time of up to 20 days, applied monthly. See § 944.275(4)(a)-(b), Fla. Stat. Because Johnson’s offense occurred before October 1, 1995, he is not required to serve 85% of his sentence. Id. Johnson will not be eligible for release until 2052, when he will be 80 years old. Based on 2014 data, a non-Hispanic, black man of Johnson’s age can expect to live to approximately age 75.

On March 19, 2015, we quashed the Fifth District’s decision in Henry, holding “that the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonho-micide offender’s sentence does not afford any ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’” during his or her natural life. Henry, 175 So.3d at 679. We provided that “Graham applies to ensure that juvenile nonhomicide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation.” Id. at 680 (citing Graham, 560 U.S. at 75, 130 S.Ct. 2011) (emphasis added). In other words, in Henry we explained that Graham applies to term-of-years prison sentences, and that juvenile nonhomicide offenders’ sentences must provide an opportunity for early release that is: (1) meaningful, (2) based on a demonstration of maturity and rehabilitation, and (3) during his or her natural life. See Henry, 175 So.3d at 680 (“Graham prohibits the state trial courts from sentencing juvenile nonhomicide offenders to prison terms that ensure these offenders will be imprisoned without obtaining meaningful opportunities to obtain future early release during their natural lives based on their demonstrated maturity and rehabilitation.”)

The State argues that because gain time provides an opportunity for early release, Johnson’s 100-year sentence does not violate Graham. However, the State’s interpretation of Graham is too narrow and the question before this Court is whether the application of gain time provides an opportunity for early release that meets all three Graham requirements as articulated in Henry. Because we conclude that gain time, generally, is not based on a demonstration of maturity and rehabilitation, Johnson’s sentence, even including gain time,, does not provide him with a meaningful opportunity for early release during his natural life.

In Henry, a unanimous Court agreed that “the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating [juvenile nonhomicide] offenders for demonstrable maturity and reform in the future .... ” Henry, 175 So.3d at 680 (emphasis added). In Henry, and cases like it, we therefore remanded for resentencing under the new juvenile sentencing guidelines. In Kelsey, we were asked to determine whether a juvenile offender who had already received resentencing pursuant to Graham was entitled to resentencing again pursuant to the new guidelines since the post-Graham sentence lacked a review mechanism. Kelsey, 206 So.3d at 6. This court determined that defendants such as Kelsey were entitled to resentencing. Id. at 11. Our reasoning in Kelsey demonstrates that the opportunity for release is not dispositive to a juvenile offender’s right to sentencing pursuant to the new guidelines. Instead, our reasoning in Kelsey supports a reading of Henry that a juvenile offender’s sentence must provide an opportunity for early release that is meaningful, based on a demonstration of maturity and rehabilitation, and during his or her natural life. In other words, pursuant to Henry, we must consider three factors when reviewing a juvenile nonhomicide offender’s term-of-years sentence. Post-Henry, we must ensure that a juvenile nonhomicide offender does not receive a sentence that provides for release only at the end of a sentence (e.g. a 45-year sentence with no provision for obtaining early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term, such as in Kelsey). Secondly, we must ensure that a juvenile nonhomicide offender who is sentenced post-Henry does not receive a sentence which includes early release that is not based on a demonstration of rehabilitation and maturity (i.e. gain time or other programs designed to relieve prison overpopulation). Last, we must ensure that a juvenile nonhomicide offender who is sentenced post-Henry does not receive a sentence that provides for early release at a time beyond his or her natural life (e.g. a 1,000-year sentence that provides parole-eligibility after the offender serves 100 years). To qualify as a “meaningful opportunity for early release,” a juvenile nonho-micide offender’s sentence must meet each of the three parameters described in Henry.

Indeed, the State’s argument in its Answer Brief concedes this point. The State argues that it is not the length of the sentence given, but rather whether the juvenile offender will have some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. State’s Ans. Br. at 7 (“It is not the length of the sentence given to a juvenile convicted of a nonhomicide offense that could potentially violate Graham, but rather, the fact that Florida currently has no standardized means to provide ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’”). Further, we previously acknowledged that the length of the sentence alone was not dispositive in Kelsey when we said that Kelsey’s “sentence was unconstitutional not because of the length of his sentence, but because it did not provide him a meaningful opportunity for early release based on maturation and rehabilitation” during his natural life. Kelsey, 206 So.3d at 11. Accordingly, irrespective of whether Johnson receives basic or incentive gain time to shorten his sentence, the application of gain time, alone, is insufficient to satisfy the requirements of Graham, Henry, and Kelsey.

Secondly, the State argues that Johnson’s resentencing should serve as his meaningful opportunity for release because, after spending nearly twenty years incarcerated, Johnson failed to demonstrate any maturity or rehabilitation and, in fact, received numerous disciplinary actions during his imprisonment. We have previously rejected the State’s argument in Kelsey; resentencing does not provide the relief required by Henry, which is resentencing pursuant to the new juvenile sentencing guidelines. Kelsey, 206 So.3d at 11.

We conclude that Johnson’s current sentence, even with gain time, exceeds his life expectancy by at least five years, and possibly 20 years. Therefore, the application of gain time does not provide him a meaningful opportunity for early release based on demonstrated maturity and rehabilitation during his natural life. Because we conclude that Johnson’s 100-year sentence violates the United States Supreme Court’s decision in Graham and our decisions in Henry and Kelsey, we quash the decision of the Fifth District Court of Appeal and remand for proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur,

CANADY and POLSTON, JJ., concur in result only.

LAWSON, J,, recused.

      . . Additionally, although not discussed in our opinion in Henry, we note that Henry’s sentence would have also been subject to the same gain time provisions as Johnson. See Henry, 82 So.3d at 1086 ("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

      . Johnson did not appeal his forty-year sentences.

      . Florida Department of Corrections, Frequently Asked Questions Regarding Gaintime, http://www.dc.state.fl.us/oth/inmates/ gaintime.html (last visited Apr. 7, 2017).

      . The Florida Department of Corrections lists Johnson’s current release date as March 8, 2052. http://www.dc.state.fl.us/appcommon/ searchall.asp (last visited April 7, 2017) (search for DC Number 614009). He will be turning 80 the year he is released if the date remains unchanged.

      . See U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Vital Statistic Reports, Vol. 65 No. 4, June 30, 2016 at 33, table 7 (available at https://www.cdc.gov/nchs/data/nvsr/ nvsr65/nvsr65_04.pdf) ("Report”).


text:
    DISTRICT COURTS OF APPEAL FIRST DISTRICT
    Brown v. State
    1D15-5624
    03/03/2016
   Aff.

Cir. Ct. (Leon)


text:
    Chapalet v. State
    1D16-0621
    03/01/2016
   Hab.Corp.den.


text:
    City of Treasure Island and PGCS v. Ahern
    1D15-3321
    03/10/2016
   Aff.

Judge of Comp. Claims


text:
    Cowan v. Jones
    1D15-2296
    03/01/2016
   Cert.den.


text:
    Department of Corrections v. Miles
    1D15-5394
    03/10/2016
   Aff.

Cir. Ct. (Jackson)


text:
    Hornes v. Florida Com’n On Offender Review
    1D14-5611
    03/03/2016
   Cert.den.


text:
    King v. State
    1D15-5597
    03/03/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    McCall v. State
    1D15-5613
    03/03/2016
   Aff.

Cir. Ct. (Ala-chua)


text:
    Smoaks v. State
    1D15-5357
    03/10/2016
   Aff.

Cir. Ct. (Ala-chua)


text:
    FIFTH DISTRICT
    Anderson v. Department of Corrections, State
    5D16-58
    05/17/2016
   Aff.

Cir. Ct. (Marion)


text:
    Aninye v. State
    5D16-721
    06/07/2016
   Aff.

Cir. Ct. (Orange)


text:
    Atlantica One, LLC v. Adragna
    5D15-1051
    05/24/2016
   Aff.

Cir. Ct. (St. Johns)


text:
    Baker v. Nationstar Mortg., LLC
    5D15-1188
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Bell v. Department of Corrections
    5D15-4142
    05/31/2016
   Aff.

Cir. Ct. (Orange)


text:
    Brockway v. State
    5D16-1281
    05/24/2016
   Aff.

Cir. Ct. (Marion)


text:
    Bush v. State
    5D15-3687
    04/26/2016
   Aff.

Cir. Ct. (Volu-sia)


text:
    Butler v. State
    5D15-1015
    05/10/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Colon v. State
    5D16-610
    06/07/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Cooper v. State
    5D15-401
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Doctors Village Partners, LLC v. V.J. Usina Contracting, Inc.
    5D15-485
    05/17/2016
   Aff.

Cir. Ct. (St, Johns)


text:
    Foster v. State
    5D16-525
    04/26/2016
   Aff.

Cir. Ct. (Bre-vard)


text:
    Frost v. State
    5D15-4415
    04/26/2016
   Aff.

Cir, Ct. (Orange)


text:
    Gea Seaside Inv., Inc. v. Hancock Bank
    5D15-4041
    05/03/2016
   Aff,

Cir. Ct. (Volu-sia)


text:
    George v. State
    5D15-3268
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Grove at Harbor Hills Homeowners Ass'n, Inc. v. Harbor Hills Development, L.P.
    5D15-1302
    05/03/2016
   Aff.

Cir, Ct. (Lake)


text:
    Hall v. State
    5D16-884
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Harrell v. State
    5D15-3560
    05/31/2016
   Aff.

Cir. Ct. (Bre-vard)


text:
    Husman v. State
    5D16-16
    05/31/2016
   Aff.

Cir. Ct. (Bre-vard)


text:
    Jenkins v. State
    5D15-2487
    04/26/2016
   Aff.

Cir. Ct. (Putnam)


text:
    Kilpi v. Kilpi
    5D15-1795, 5D16-0118
    06/07/2016
   Aff.

Cir. Ct. (Bre-vard)


text:
    Lisboa-Cupely v. State
    5D15-583
    04/26/2016
   Aff.

Cir. Ct. (Osceola)


text:
    Lomax v. State
    5D15-3592
    04/26/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Long v. Long
    5D15-963
    05/03/2016
   Aff.

Cir. Ct. (Fla-gler)


text:
    Mackey v. State
    5D15-4258
    05/10/2016
   Aff.

Cir. Ct. (Lake)


text:
    Martinez v. State
    5D15-3584
    05/10/2016
   Aff.

Cir. Ct. (Orange)


text:
    Myers v. Department of Corrections
    5D15-3904
    04/26/2016
   Aff.

Cir. Ct. (Sumter)


text:
    Perez v. State
    5D15-3801
    05/31/2016
   Aff.

Cir. Ct. (Orange)


text:
    Proetto v. Manuel DelCharco, Jr., M.D., LLC
    5D15-4130
    05/03/2016
   Aff.

Cir. Ct. (Marion)


text:
    Reffner v. State
    5D16-279
    05/10/2016
   Aff.

Cir. Ct. (Lake)


text:
    Rudez v. Bank of New York Mellon
    5D15-2493
    05/31/2016
   Aff.

Cir. Ct. (Seminole)


text:
    Sharp v. Can
    5D15-1776
    04/26/2016
   Aff.

Cir. Ct, (Osceola)


text:
    Smith v. GMAC Mortg., LLC
    5D15-2909
    06/07/2016
   Aff.

Cir. Ct. (Volu-sia)


text:
    Smith v. State
    5D15-2726
    05/24/2016
   Aff.

Cir. Ct, (Lake)


text:
    Sneathen v. State
    5D15-3275
    06/07/2016
   Aff.

Cir, Ct. (Orange)


text:
    Stewart v. State
    5D16-744
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    Sundblade v. State
    5D16-606
    05/31/2016
   Aff.

Cir. Ct. (Lake)


text:
    Taylor v. State
    5D16-1207
    05/31/2016
   Aff.

Cir. Ct. (Orange)


text:
    Thomas v. State
    5D16-643
    04/26/2016
   Aff.

Cir. Ct. (Orange)


text:
    W.B. v. A.L.D.
    5D15-4307
    05/03/2016
   Aff.

Cir. Ct. (Marion)


text:
    Williams v. State
    5D16-710
    04/26/2016
   Aff.

Cir. Ct, (St. Johns)


text:
    Williams v. State
    5D15-3847
    05/17/2016
   Aff.

Cir. Ct. (Volu-sia)


text:
    Williams v. State
    5D16-841
    05/24/2016
   Aff.

Cir. Ct. (Bre-vard)


author: WALLIS, J.

text:
    Donald Otis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-2358
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    Rehearing Denied May 1, 2017
    Donald Otis Williams, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   WALLIS, J.

Donald Otis Williams filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging that his appellate counsel provided ineffective assistance by not raising a claim that the trial court failed to offer counsel for the sentencing portion of his violation of probation hearing. We grant the petition and remand for further proceedings consistent with this opinion.

When reviewing a petition alleging ineffective assistance of appellate counsel, “we must determine whether counsel’s performance was deficient and, if so, whether ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Pierce v. State, 121 So.3d 1091, 1093 (Fla. 5th DCA 2013) (quoting Lopez v. State, 68 So.3d 332, 333 (Fla. 5th DCA 2011)). Our court has held:

[I]f a defendant waives the right to counsel at any stage of the criminal proceedings, the trial court must renew the offer of assistance of counsel at each subsequent stage of the proceedings. Sentencing is a critical stage in criminal proceedings; and, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.

Hays v. State, 63 So.3d 887, 888 (Fla. 5th DCA 2011) (alteration in original) (quoting Hardy v. State, 655 So.2d 1245, 1247-48 (Fla. 5th DCA 1995)); see also Fla. R. Crim. P. 3.111(d)(5) (“[I]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”). A trial court’s failure to offer counsel for sentencing ordinarily constitutes fundamental error. Jackson v. State, 983 So.2d 562, 575 (Fla. 2008). Thus, appellate counsel provides ineffective assistance by not raising the issue on appeal. Henretty v. State, 146 So.3d 55, 56 (Fla. 1st DCA 2014) (finding appellate counsel ineffective and ordering a new appeal); Blane v. State, 987 So.2d 241, 241 (Fla. 1st DCA 2008) (same).

The record reflects that the trial court offered to appoint Williams counsel at the outset of the violation of probation hearing, but Williams declined. However, after finding that Williams violated his probation, the trial court immediately proceeded to sentencing before renewing the offer for counsel. The trial court’s failure to renew the offer is fundamental error, which, if raised on appeal, would have resulted in a reversal and remand for a new sentencing hearing. See Henretty, 146 So.3d at 56. We note that, under these circumstances, appellate courts often grant the petitioner a new appeal. See id. Nonetheless, having already determined that the trial court erred by failing to renew the offer for counsel, we find that ordering a new appeal would result in unnecessary redundancy. See Johnson v. Wainwright, 498 So.2d 938, 939 (Fla. 1986) (“In this instance, however, a new appeal would be redundant because we acknowledge that reversible error occurred at trial.”); accord Hampton v. State, 178 So.3d 921, 922 (Fla. 5th DCA 2015); Pierce v. State, 121 So.3d 1091, 1094 (Fla. 5th DCA 2013); Disinger v. State, 574 So.2d 268, 269 (Fla. 5th DCA 1991). Therefore, we grant the petition and remand with instructions to vacate Williams’s sentence and to hold a new sentencing hearing at which the trial court must offer to appoint Williams counsel.

PETITION GRANTED; REMANDED with Instructions.

COHEN, C.J. and ORFINGER, J., concur.

      . Petitioner raises two additional claims of ineffective assistance of appellate counsel that we deny without further discussion.


author: Klingensmith, J.

text:
    Zaheer ALI, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1172
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant, Zaheer Ali, previously pled guilty to aggravated stalking and criminal mischief, and was placed on probation that included community control. He was later charged with violating his probation by committing false imprisonment and domestic battery by strangulation. As a result of the State’s concession of error on issues relating to the form of the final judgment, we reverse.

The State concedes that the final judgment entered by the court erroneously failed to reflect the offenses for which appellant was found to have violated his probation, but contends that it was merely a scrivener’s error that should be corrected on remand. The judgment entered by the court, which imposed a ten-year prison sentence, contained the correct underlying case number and indicated it was for a probation violation. However, the judgment listed the new offenses for which appellant was arrested, instead of the original offenses for which he was originally placed on probation.

Thus, we remand for the court to correct the scrivener’s error on the final judgment so that it reflects the offenses for which appellant violated probation. See Widel v. State, 120 So.3d 68, 69 (Fla. 4th DCA 2013) (case remanded to correct scrivener’s error where sentencing disposition order listed the wrong offense for which the defendant was convicted); Sirota v. State, 977 So.2d 700, 701 (Fla. 4th DCA 2008) (case remanded to correct judgment containing a scrivener’s error); Newson v. State, 867 So.2d 603, 603 (Fla. 2d DCA 2004) (written judgment remanded for correction of a scrivener’s error). Appellant need not be present for the trial court to make this correction. Thomas v. State, 174 So.3d 599, 600 (Fla. 5th DCA 2015); Sirota, 977 So.2d at 701.

The State also concedes that the order revoking community control erroneously listed only “aggravated stalking,” as it should have also listed “criminal mischief.” Accordingly, we also remand the order revoking community control to the trial court to be corrected to include “criminal mischief.” See Penn v. State, 190 So.3d 258, 259 (Fla. 1st DCA 2016) (affirming conviction and sentence, but remanding to correct scrivener’s error on order of community control).

Additionally, appellant claims he was not given the appropriate amount of jail credit for time already served. However, he failed to preserve this issue for review on direct appeal. See Georges v. State, 199 So.3d 971, 973 (Fla. 4th DCA 2016) (holding that all jail credit issues must be handled pursuant to Florida Rule of Criminal Procedure 3.801), rev. denied, No. SC16-1473, 2016 WL 6723772 (Fla. Nov. 15, 2016). Rule 3.801(b) requires a motion under the rule to be filed no later than one year after a sentence becomes final. Here, while the sentence was entered on February 11, 2016, “[a] criminal proceeding is concluded when, inter alia, the mandate issues from the appellate court on a direct appeal of a defendant’s judgment and sentence.” Davis v. State, 198 So.3d 1070, 1072 (Fla. 5th DCA 2016). We therefore affirm appellant’s sentence without prejudice to file a motion for post-conviction relief pursuant to rule 3.801 within thirty days of the issuance of this court’s mandate. See Georges, 199 So.3d at 973. We affirm as to all other issues raised on this appeal without further comment.

Reversed and Remanded ivith instructions.

Taylor and Gerber, JJ., concur.