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Jax Daily Record Friday, May 27, 201612:00 PM EST

Justices reject sentence in 1990 murder by juvenile

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by: Jim Saunders The News Service of Florida

More than 25 years after teenager Angelo Atwell killed a woman in Broward County, the Florida Supreme Court on Thursday overturned his life sentence in the latest fallout from a landmark U.S. Supreme Court decision.

The U.S. Supreme Court in 2012 barred juveniles from being sentenced to life in prison without the possibility of parole. Atwell’s sentence included the possibility of parole, but Thursday’s 4-3 ruling by the Florida Supreme Court said the earliest he likely could be released from prison would be the year 2130, which is 140 years after he committed the crime as a 16-year-old.

In the 24-page majority opinion, Justice Barbara Pariente wrote that “while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.” She wrote that the sentence is unconstitutional under the U.S. Supreme Court ruling known as Miller v. Alabama.

“We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional,’’ Pariente wrote in an opinion joined by Chief Justice Jorge Labarga and justices Peggy Quince and James E.C. Perry.

But Justice Ricky Polston, joined in a dissent by justices R. Fred Lewis and Charles Canady, argued that the Supreme Court should uphold a decision by the 4th District Court of Appeal that found Atwell’s sentence was constitutional.

Atwell had an initial parole hearing in 2015 and, Polston argued, will have additional parole reviews every seven years.

“The majority’s decision reaches too far into the merits of a parole process not at issue in this case because of the majority’s unjustified perception and suspicion of the parole commission’s periodic review,” Polston wrote.

Thursday’s ruling provided little detail about Atwell’s case. But a 1991 story in the Sun Sentinel newspaper said he was convicted in the August 1990 murder of high-school teacher Margaret Holuczak, who was shot in the head as she struggled with two muggers.

Atwell, now 41, was sentenced in 1992 to life in prison with the possibility of parole after 25 years. Florida in 1994 eliminated parole for new crimes, but the parole system remained in effect for inmates, such as Atwell, who were sentenced earlier.

The 2012 U.S. Supreme Court ruling and another decision involving life sentences for juveniles convicted of committing non-murder crimes touched off widespread legal appeals in Florida and led the Legislature in 2014 to pass a law seeking to resolve the sentencing issues.

The underpinning of the Miller ruling was that juveniles are different from adults and that sentencing juveniles to life in prison without the chance of parole violated Eighth Amendment protections against cruel and unusual punishment.

But the wrinkle in Atwell’s case is that he was sentenced with the possibility of parole. While Atwell had a parole hearing in 2015, Pariente wrote that the Florida Commission on Offender Review set a presumptive parole release date of Dec. 27, 2130. While Atwell will come up for another review in 2022, Pariente wrote that “there is no realistic chance of a change in the presumptive parole release date.”

Thursday’s ruling required that Atwell be resentenced under the 2014 state law, which allows a judge to impose a sentence of 40 years to life in prison.

Pariente drew a distinction between that law and the parole process, writing that the law requires a review after 25 years, with a judge determining “whether a sentence modification is warranted after reviewing, among other factors, the juvenile offender’s youth and its attendant characteristics at the time of the offense, the opinion of the victim or the victim’s next of kin concerning the release of the juvenile offender from prison, and whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing.”

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