Timothy M. Kirkland v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2025-1230
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TIMOTHY M. KIRKLAND,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
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On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.

June 10, 2026

PER CURIAM.

Appellant challenges the trial court’s order issued following
his sentence review hearing that denied his request for sentence
modification after concluding that Appellant was not rehabilitated
such that he was “fit to reenter society.” See § 921.1402(7), Fla.
Stat. (2025). Because competent, substantial evidence supports
the trial court’s findings we affirm. See Murphy v. State, 368 So. 3d
1025, 1028 (Fla. 2d DCA 2023).

AFFIRMED.

KELSEY and M.K. THOMAS, JJ., concur; BILBREY, J., specially
concurs with opinion.
BILBREY, J., specially concurring.

I agree that competent, substantial evidence supports the
trial court’s findings such that we are correct to affirm.
Nonetheless, although the issue is not before us, I have concerns
whether Appellant’s current sentence is legal.

In January 1984, Appellant was found guilty of first degree
murder for a crime he committed on April 4, 1983. He was sixteen
years old when he committed the murder. In 1983, the
punishment for first degree murder was either death or life in
prison with eligibility for parole after 25 years. See §§ 775.082(1),
782.04(1)(a), Fla. Stat. (1983). Appellant was sentenced to life in
prison with eligibility for parole after 25 years. * We affirmed the
judgment and sentence on direct appeal. Kirkland v. State, 478
So. 2d 1092 (Fla. 1st DCA 1985).

In May 2016, Appellant moved for resentencing, claiming that
his life sentence for a crime committed as a juvenile was
unconstitutional in violation of the Eighth Amendment per
Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567
U.S. 460 (2012). In February 2017, the trial court granted
resentencing citing to Miller and ordered that Appellant be
resentenced in accordance with the statutory changes to juvenile
sentencing enacted in chapter 2014-220, Laws of Florida. See
Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015) (applying “chapter
2014-220, Laws of Florida, to all juvenile offenders whose
sentences are unconstitutional under Miller”).

Before resentencing occurred, the State moved to quash the
resentencing order based on the then recent case State v. Michel,
257 So. 3d 3 (Fla. 2018). In Michel, the Florida Supreme Court
held that no Eighth Amendment violation occurs when a juvenile
offender is sentenced to life with the possibility of parole after 25
years. Id. at 4, 7. Therefore, according to Michel, “such juvenile

* Although Appellant could have been sentenced to death at

the time of his trial, such a sentence would have later been held
unconstitutional. See Roper v. Simmons, 543 U.S. 551, 574 (2005),
abrogating Stanford v. Kentucky, 492 U.S. 361 (1989).

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offenders are not entitled to resentencing under section 921.1402,
Florida Statutes.” Id. at 8.

After the opinion in Michel became final, the trial court
ultimately determined that its order granting resentencing was a
final order that could not be rescinded. See Morgan v. State, 350
So. 3d 712, 716–17 (Fla. 2022) (explaining when postconviction
proceedings result in final, appealable orders). It then conducted
resentencing in December 2021. At the resentencing, Appellant,
under the belief that he would not be entitled to sentence review
under section 921.1402 if parole eligible, asked to be sentenced to
life without parole. The trial court imposed that sentence.

“[I]t is the date of the commission of the crime, not the date
the sentence becomes final, that dictates which punishment
statute applies.” Hutchinson v. State, 396 So. 3d 45, 47 (Fla. 1st
DCA 2024) (quoting Sheaffers v. State, 243 So. 3d 518, 520 (Fla.
1st DCA 2018)). Furthermore, a sentence that exceeds the
statutory maximum is an illegal sentence. Costin v. State, 46
So. 3d 96, 97 (Fla. 1st DCA 2010) (compiling cases). “Trial courts
are not permitted to impose illegal sentences, even pursuant to a
negotiated plea agreement.” Id. (citations omitted).

An amendment to a sentencing statute benefiting a defendant
may be applied retroactively if there is clear legislative intent to
do so. See Pappas v. State, 346 So. 3d 1200, 1203 (Fla. 1st DCA
2022). But a law that inflicts a greater punishment after a crime
has been committed is an illegal ex post facto law. Shenfeld v.
State, 44 So. 3d 96, 100 (Fla. 2010) (quoting Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390–91 (1798)).

As noted, when Appellant committed the murder in 1983, life
with the possibility of parole after 25 years was the only lawful
sentence other than death. See §§ 775.082(1), 782.04(1)(a), Fla.
Stat. (1983). “A life with parole–25 sentence is quantitatively and
qualitatively a far different sentence from mandatory life without
parole, the strongest of all available punishments for juveniles.”
Partlow v. State, 134 So. 3d 1027, 1037 (Fla. 1st DCA 2013)
(Makar, J., concurring in part, dissenting in part).

When Appellant was resentenced to life without parole, he
was allowed a sentence review hearing, making his sentence

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constitutional under the Eighth Amendment. See Phillips v. State,
286 So. 3d 905, 910 (Fla. 1st DCA 2019). Still, at resentencing his
sentence was increased beyond what was permissible under the
1983 statutes. When confronted with an appellant in the same
posture in Morgan v. State, 308 So. 3d 199, 201 (Fla. 4th DCA
2020), the court held that no ex post facto violation occurred since
the appellant willingly accepted the potential benefit of being
resentenced under the new statute. But the court in Morgan did
not discuss the numerous cases that have held a defendant cannot
agree to an illegal sentence.

But for Appellant’s request to be resentenced under section
921.1401 because he believed it was the only way to allow for a
sentence review hearing under 921.1402, his life without parole
sentence would clearly be an illegal sentence. Whether the
Morgan decision was correct or whether a juvenile offender cannot
agree to an otherwise illegal sentence in exchange for a sentence
review hearing has apparently never been addressed by this court.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

James Uthmeier, Attorney General, and Amanda Bosman,
Assistant Attorney General, Tallahassee, for Appellee.

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