David Weinstein's argument that Judge Murphy can sentence Eric Rivera to life.

1. Let us start this discussion by pointing out the obvious, seven people’s lives were
irreparably changed almost 7 years ago. Nothing will bring Sean Taylor back to life. His child
and the mother of that child will never hear him come home at the end of the day or feel the
happiness that he brought to complete their family.
Yesterday, a jury found one of the four people charged with Sean Taylor’s murder guilty
of second degree murder and armed burglary. Eric Rivera was 17 years old at the time of the
crime. Today, he is a 23 year old young man. The question now becomes, what punishment can
and should Eric Rivera receive?
A person convicted of second degree murder, under either Florida Statutes Section
782.04 (2) or (3), has been found guilty of a felony of the first degree, punishable by
imprisonment for a term of years not exceeding life or as provided in section 775.082.
A person convicted of armed burglary under Florida Statutes Section 810.02(2)(b) has
also been found guilty of a felony of the first degree, punishable by imprisonment for a term of
years not exceeding life or as provided in section 775.082.
The punishment for a felony of the first degree as set forth in Section 775.082(3)(b) is,
“For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when
specifically provided by statute, by imprisonment for a term of years not exceeding life
imprisonment.” Second degree murder and armed burglary specifically provide for a
punishment of “imprisonment for a term of years not exceeding life.” Therefore, the maximum
term of imprisonment for Eric Rivera’s crimes of conviction is a term of years not exceeding life.
For most defendants, the discussion would end here. Calculate the defendant’s guideline
sentence under the Florida Criminal Punishment Code, factor in any statutory minimum
mandatory penalty and sentence him from the minimum up to life imprisonment. Florida
Statutes Section 775.087(2)(a)1d adds a 10 year minimum sentence when there is a possession of
a firearm but no discharge. The guideline range under the Florida Criminal Punishment Code is
approximately 17.3 years.
However, at the time that Eric Rivera committed his crime, he was still less than 18 years
old and therefore a juvenile. There is no question that juveniles must be treated differently under
the law. Children make poor decisions due to developmental, physical and emotional
immaturity. This is a topic that has been discussed in all 50 States and has been argued before
the United States Supreme Court. So what is the maximum penalty that Eric Rivera can receive
for his crimes of conviction?
In Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United
States Supreme Court held that a mandatory life sentence without parole for capital murders
committed by juveniles—the only sentence allowed by section 775.082(1), Florida Statutes—
violated the Eighth Amendment to the United States Constitution. This ruling was extended by
several Florida District Courts of Appeal.
In Neely v. State, 2013 WL 1629227, 38 Fla. L. Weekly D 851 (Fla. 3d DCA Apr. 17,
2013), the Third District found that “Because Miller did not categorically bar a life sentence
without parole for a juvenile, this decision does not preclude the trial court from again imposing

2. a life term without possibility of parole should the trial court upon reconsideration deem such
sentence justified. See Washington, 103 So.3d at 920. However, “the trial court must conduct an
individualized examination of mitigating circumstances in considering the fairness of imposing
such a sentence.” Id.
This is the same approach that the Court had previously followed in Hernandez v. State,
117 So.3d 778 (Fla. 3d DCA 2013); (“We adopt the measured approach of the majority in
Washington: Under Miller, a sentence of life without the possibility of parole remains a
constitutionally permissible sentencing option. A discourse by this Court on other sentencing
options is premature.... The better course calls for this Court to exercise restraint and for the
parties to make their case before the trial court, where testimony may be taken, evidence
presented, and argument made on all material issues to include the potential range of sentencing
options.”).
This issue was also addressed by the First and Fifth Districts with similar results, See
Walling v. State, 105 So.3d 660 (Fla. 1st DCA 2013); Partlow v. State, ––– So.3d ––––, 2013
WL 45743, 38 Fla. L. Weekly D94 (Fla. 1st DCA Jan.4, 2013); Washington v. State, 103 So.3d
917, 920 (Fla. 1st DCA 2012); Horsley v. State, 2013 WL 4605664, 38 Fla. L. Weekly D1862
(Fla. 5th DCA Aug. 30, 2013).
In fact, the discussion may not be over. The Courts in Partlow and Horsley certified the
question of whether or not the US Supreme Court’s decision in Miller revived the prior sentence
of life with parole eligibility after 25 years previously contained in section 775.082(1).
So where does this leave the Court in deciding what the maximum sentence is for Eric
Rivera? The answer, in my opinion, is that Eric Rivera can be sentenced to a term of years not
exceeding life.
As the law currently stands in the State of Florida, after conducting an “individualized
examination of mitigating circumstances in considering the fairness of imposing such a
sentence,” a Court can impose a life sentence upon a juvenile for a capital offense. By the same
reasoning, a Court that conducts the identical analysis for a juvenile convicted of committing a
crime that carries a statutory penalty of a term of years not exceeding life can therefore, if
appropriate, impose a life sentence.
That is not to say that a life sentence is the appropriate sentence for Eric Rivera. We
know very little about him, other than what was presented during the guilt phase of his trial. It is
up to his attorneys to present any mitigating circumstances during his sentencing, now scheduled
for early December. It is also relevant for the prosecution to present any aggravating factors.
After the close of that phase of the trial, the Court can fashion an appropriate sentence. Under
Miller and its progeny in Florida, it can be any sentence from at least 10 years up to one that
does not exceed life imprisonment.