Here's a Colorado case in which the court reformed the sentence to life with parole and let everything else stand:

Colorado v. Banks

Well, defense counsel filed his pre-trial writ on my 17 year old defendant's capital murder indictment. He is asking that the case be dismissed because the statute is unconstitutional as applied to his client. Fortunately, I also indicted him for 1st degree murder and aggravated robbery as a backup. I should have a hearing before the month is out.

I now have the brief on our LWOP case. I have 7 cases due in front of that one.

Any chance the Gov is going to do something on this or is he going to let us hang out in the cold? (or actually in the heat and humidity).

quote:

Originally posted by rk:

Any chance the Gov is going to do something on this or is he going to let us hang out in the cold? (or actually in the heat and humidity).

Have you asked?

Apparently the sentencing error is subject to procedural default (claim not raised in trial court). Garza v. State, 2012 Tex. App. LEXIS 8818 and Rivera v. State, 2012 Tex. App. LEXIS 8137. Rivera also finds that Miller is not a "new rule," which has definite implications about relief on subsequent habeas writs and maybe all writs where there was a direct appeal.

Maybe this approach is also available in Texas (from concurring opinion of Judge Wolf in Washington v. State, 2012 Fla. App. LEXIS 19119):

I disagree, however, with the majority's decision not to determine which are the appropriate sentencing alternatives available to this trial judge. The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.

One might argue that because pursuant to Miller, the trial judge on remand may impose a life sentence without possibility of parole, it is unnecessary to address alternatives in this case. I cannot agree. In order for the trial judge to exercise the discretionary sentencing power mandated by Miller, the trial court must be aware of the legitimate alternatives available to the court.

In accordance with Miller, the only sentencing alternative specifically authorized by the Legislature, a mandatory life sentence without possibility of parole, is unconstitutional. The trial court must have the discretion to impose an alternate sentence based on the facts of an individual case.

Both sides have addressed what sentences may be imposed on remand. The State urges us to return to a previous statutory sentencing scheme of life without the possibility of parole until after 25 years.

The defense urges us to allow the trial court to sentence the defendant to a term of years with parole immediately available. I cannot find that either of these alternatives is legally correct.

Both of the alternatives set forth by the parties provide for parole. Our Legislature has repeatedly, arguably unwisely, eschewed the alternative of parole. See § 921.001(4), (8) Fla. Stat. (1985) (abolishing parole for noncapital felonies); § 775.082, Fla. Stat. (1997) (abolishing parole for capital felonies); § 921.002(1)(a)(5), Fla. Stat. (1997) (stating chapter 947, which relates to parole, shall not apply to those sentenced under the Criminal Punishment Code).

Thus, I cannot glean or discern a legislative intent that one of these replacements should be adopted if the present statutory scheme were struck down. While the parole commission still exists specifically for people sentenced when parole was still available, I believe a court mandating that a whole new class of people be eligible for parole would violate the separation of powers provisions of the Florida Constitution. See art. II, sec. 3, Fla. Const.

The State relies on B.H. v. State, 645 So. 2d 987, 995 (Fla. 1994), in which the supreme court explained the principle of statutory revival, which applies "where the loss of the invalid statutory language will result in a 'hiatus' in the law that would be intolerable to society." Id. (citing State in re Hunter, 387 So. 2d 1086, 1090 (La.1980)). Under this principle, "when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional.5" Id.

However, the State ignores footnote 5 of B.H., in which the court clarified there is no authority to revive any statute other than the immediate predecessor:
This necessarily means that there cannot be a revival of any statute other than the immediate predecessor. If the immediate predecessor statute is defective, then no further revival is possible under any circumstances. There also may be cases in which the immediate predecessor statute was enacted so long ago in the past that it no longer reflects the consensus of society and therefore should not be revived.
B.H., 645 So. 2d at 995, n.5.

Here, the statute that the State seeks to revive, which provided for life without the possibility of parole until after 25 years, is not the immediate predecessor statute. Therefore, this court has no authority to revive it. Further, even if it were the immediate predecessor, parole was permitted "so long ago in the past that it no longer reflects the consensus of society." Id. The Legislature abolished parole long ago. Thus, parole is no longer the consensus of society, as expressed by its legislative representatives. Finally, in light of my view that a sentence of life is inclusive of a term of years, discussed below, no hiatus is created which would necessitate invoking the rule of statutory revival.

The defense's argument for immediate eligibility for parole is equally unconvincing. The Legislature previously said that the only sentencing scheme available for capital offenses was life without possibility of parole. It would be unfathomable to me that the Legislature would intend that these offenders would immediately be eligible for parole.

Moreover, if we were to reinstate parole, we would also have to strike as unconstitutional section 921.002(1)(e), Florida Statutes, which states, "[t]he provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code." However, section 921.002 is not unconstitutional under Miller. Miller did not mandate parole, but instead found a juvenile could not be sentenced to life without the possibility of parole without first considering certain factors.

The sentencing option which is the closest to the legislative expression of intent and involves the least rewriting of the statute is a sentence of a term of years without possibility of parole. This option also gives the trial court the discretion mandated by Miller.

A life sentence is merely a term of years equaling the lifespan of a person. Any term of years is necessarily included within the purview of life. Thus, this alternative does not constitute a rewrite of the statute. For the foregoing reasons, I urge the trial court to impose a sentence of a term of years up to life without possibility of parole.

Michigan Supreme Court refuses retroactive application

Michigan v. Carp

That is bold.

More from the Carp case that could also be applied in Texas: The Michigan Court of Appeals apparently felt comfortable with just amending the governing statute "in the interim," i.e. for cases to be decided before the legislature acts. Here is what they say about when does a statute that defines a "juvenile" one way not mean what it says?:

There are three Michigan statutes that intersect to create an unconstitutional perfect storm under Miller. Those statutes are: MCL 750.316(1), mandating a life sentence for any person convicted of first-degree murder; MCL 769.1(1)(g), requiring courts to sentence any juvenile convicted of first-degree murder in the same manner as an adult; and MCL 791.234(6)(a), excluding any prisoner serving a life sentence for first-degree murder from eligibility for parole. In our view, however, all of the statutes are not unconstitutional under Miller. Rather, as we explain below, only one of them is: MCL 791.234(6)(a), which provides that a prisoner sentenced to life imprisonment for first-degree murder "is not eligible for parole."

We must address a further important discrepancy between Miller and our current sentencing scheme for juveniles in Michigan. That discrepancy involves the very definition of who qualifies as a juvenile. Miller defines a juvenile as comprising "those under the age of 18 at the time of their crimes. . . ."186 The same definition is evident in Graham's acknowledgement that "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood, those who were below that age when the offense was committed may not be sentenced to life without parole for a non-homicide crime."187 But HN17 Michigan defines a juvenile as below the age of 17. Specifically, MCR 6.903(E) defines a juvenile as encompassing "a person 14 years of age or older, who is subject to the jurisdiction of the court for having allegedly committed a specific juvenile violation on or after the person's 14th birthday and before the person's 17th birthday." Similarly, MCL 600.606(1) defines a juvenile as "14 years of age or older and less than 17 years of age," while MCL 764.27 references "a child less than 17 years of age. . . ." Consequently, to adhere to Miller, sentencing of a juvenile requires that those individuals between 17 and 18 years of age also be subject to the strictures as outlined herein.

We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.

In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that HN19 MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole. We further hold that the Parole Board must respect the sentencing court's decision by also providing a meaningful determination and review when parole eligibility arises.

People v. Carp, 2012 Mich. App. LEXIS 2270 (Nov. 15, 2012)

The Fifth Circuit has now also decided no habeas relief will be granted based on Miller. Craig v. Cain, 2013 U.S. App. LEXIS 431. Only remaining question on that front may be whether counsel was ineffective for not raising the issue in more recent cases.

Some important language in SB 187: The change in law made by this Act applies to a criminal action pending, on appeal,or commenced on or after the effective date of this Act, regardless of whether the criminal action is based on an offense committed before, on, or after that date. SB 187

The un-italicized language above is also important because it narrows what is broadened (if that makes any sense).

The CCA is considering whether Miller is retroactive. link

The CCA will also be reviewing whether the issue must be preserved in the trial court. It has granted review in the Garza case mentioned above.

Here's another case that -- unlike SB 187 -- allows the option of LWOP:

Miller did not categorically ban life sentences without parole for juvenile homicide offenders, or foreclose a trial court from considering aggravating factors in its sentencing determination. Instead, it “mandate[d] only that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing [life without parole].” Miller, 132 S.Ct. at 2471. “[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 2475. We, accordingly, vacate Hernandez's life sentence and remand for resentencing.

Hernandez v. State, -- So.3d ----, 2013 WL 1136434 (Fla.App. 3 Dist. March 20, 2013).

Another court merely sidestepped the issue, remanding for a new punishment hearing but saying nothing about the available options.

STATE OF LOUISIANA v. DARRIUS R. WILLIAMS

Nos. 2012-K-1723, 2012-KO-1766

Supreme Court of Louisiana

March 8, 2013

ON SUPERVISORY WRIT TO THE COURT OF APPEAL, SECOND CIRCUIT

PER CURIAM.
Writ granted in part. Defendant is presently serving a sentence of life imprisonment without possibility of parole for a second degree murder committed in 2008 when he was 17 years old. The sentence was mandated by the penalty provision of the statute establishing the offense. The court of appeal affirmed defendant's conviction and sentence in State v. Williams, 47,146 (La. App. 2 Cir. 6/20/12); 93 So.3d 830, and defendant applied to this Court for discretionary review. While defendant's application was pending, the United States Supreme Court held in Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juveniles offenders." However, the Miller court did not establish a categorical prohibition against life without parole for juveniles. Instead, the court required that a sentencing court consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles: "Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller, 567 U.S. at __, 132 S.Ct. at 2469. Defendant's case was pending on direct review when Miller was decided. Therefore, we grant to remand to the district court to reconsider the sentence after conducting a new sentencing hearing in accordance with the principles enunciated in Miller v. Alabama. The applications are otherwise denied.

Hopefully, the Eleventh Circuit has correctly answered the retroactivity question being studied in Maxwell by the CCA. In re Morgan, 2013 U.S. App. LEXIS 7523 (Apr. 12).

The 1st has granted arguments on my Miller case....we conceded Miller applied (and it was properly preserved). We asked the CoA to give us guidance when they kick it down by either waiting until the Lege has acted or by resurrecting the earlier Penal Code.

This is going to be a painfully short argument.
Yes, we agree it applies and they followed all the procedural requirements to get it here.
And No, we dont know how to resentence him---so please please tell us.

SB 187 is DEAD.

If you have a case subject to Miller problems and your office has not already received an email from me regarding possible solutions, email me now to be added to that list.

Maybe this is the best argument for what should happen on remand in these cases (namely rewrite the statute to eliminate the part that was contrary to the Eighth Amendment):

When a part of a statutory scheme is unconstitutional, a court should sever out the unconstitutional aspects and save the balance of the scheme if "other provisions or applications of the statute . . . can be given effect without the invalid provision or application." TEX. GOV'T CODE § 311.032; see also Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 441 (Tex. 1998) ("The unconstitutionality of one part of a statute does not require us to invalidate the entire statute unless the unconstitutional provision is not separable from the remainder."); Association of Texas Prof'l Educators v. Kirby, 788 S.W.2d 827, 830 (Tex. 1990) ("The test for severability in the absence of an express severability clause is one of legislative intent."). This rule reflects the "case law's reminder that 'in the construction of statutes, if it can be lawfully done, it is the duty of the court to construe a statute so as to render it valid.'" Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990) (quoting Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604, 606 (1938)). Even if part of a statute is unconstitutional, "the same act, having received the sanction of all branches of the Legislature . . . may contain other useful and salutary provisions . . . . It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional." State v. Laredo Ice Co, 96 Tex. 461, 73 S.W. 951, 953 (Tex. 1903).

In Rose v. Doctors Hospital, the Court restated the test for severability:

"When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand."

Rose, 801 S.W.2d at 844 (quoting Western Union Tel. Co. v. State, 62 Tex. 630, 634 (1884)).