Clyde Johnson v. State

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CLYDE EDWARD JOHNSON, Appellant, v. Case No. 5D12-831 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 15, 2013 Appeal from the Circuit Court for Lake County, Lawrence J. Semento, Judge. Baya Harrison, Appellant. III, Monticello, for Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. 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, 130 S.Ct. 2011 (2010), as he was under 18 years old at the time of the offense.1 As our court has already rejected the argument that a term of years sentence 1 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 violates Graham in Henry v. State, 82 So. 3d 1084 (Fla. 5th DCA 2012), rev. granted, 2012 WL 5991345 (Fla. Nov. 6, 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, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug. 8, 2012). AFFIRMED; CONFLICT CERTIFIED. TORPY, LAWSON and JACOBUS, JJ., concur. 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 resentenced Johnson to concurrent 40-year sentences, which are not challenged on appeal. 2

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