from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case Nos.
312002CF1339A, 312002CF720A, 312002CF001483A.
K. Brewster, Ft. Pierce, pro se.
Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for
ON MOTION FOR REHEARING
the motion for rehearing but grant appellant's motion for
written opinion. We withdraw the per curiam affirmance and
substitute the following in its place.
David Brewster, appeals an Order Denying Motion for Damages,
for Return of Restitution and Compensation, which the court
dismissed as untimely filed pursuant to section 961.03,
Florida Statutes (2017). The court also ruled that Nelson
v. Colorado, 137 S.Ct. 1249 (2017), requiring the return
of fees, costs, and restitution after a conviction has been
overturned, could not be applied retroactively. We agree with
the trial court and affirm.
was originally charged in case number 02-720 with grand theft
and uttering a forged instrument. In another case, 02-1339,
he was charged with executing a scheme to defraud a financial
institution, and in a third case, 02-1483, he was charged
with counterfeiting a license tag. He entered into a plea
agreement with the State on all three charges, whereby he
agreed to plead no contest and to pay restitution in 02-720
and 02-1339. In turn, he would be sentenced to a three-year
term of probation in 02-1339. The trial court entered a final
judgment of conviction and sentence upon the charges.
in 2009, a federal court vacated his conviction in
02-1339. Brewster v. McNeil, 720 F.Supp.2d
1369 (S.D. Fla. 2009). Brewster then filed a motion to
correct sentence. He argued that the vacation of his
conviction in 02-1339 affected his negotiated plea agreement
in the other two cases. The trial court rejected this
argument as the restitution payments were part of a plea
agreement on all three cases, and the convictions on the
other two had not been vacated.
later, in 2017, appellant filed in all three cases a
"Motion for Damages, For Return of Restitution and
Compensation Pursuant to Nelson v. Colorado, 581
U.S. ___, 137 S.Ct. 1249 (2017)." Appellant sought the
return of the restitution amounts paid in 02-720 and 02-1339.
He also sought damages for his illegal detention and false
imprisonment. The trial court denied the relief on the
grounds that the petition was untimely filed pursuant to
section 961.03, Florida Statutes (2017), the Wrongful
Conviction Act. The court also concluded that neither the
U.S. Supreme Court nor the Florida Supreme Court has held
that Nelson applies retroactively. The court
dismissed his motion for return of restitution and
compensation. Brewster now appeals the trial court's
dismissal of his motion.
review the trial court's ruling de novo, as statutory
construction is a question of law. See Bartek v.
State, 198 So.3d 1009 (Fla. 5th DCA 2016).
to section 961.01, Florida Statutes (2017), the legislature
created the Victims of Wrongful Incarceration Compensation
Act, permitting compensation to persons wrongfully convicted
of crimes. Under the act, a person is entitled to
compensation for wrongful incarceration, including costs,
fines, and attorney's fees, due to his wrongful
conviction. § 961.06, Fla. Stat. (2017). Section
961.03(1)(b)1., Florida Statutes (2017), requires that a
petition for compensation be filed within ninety days of the
order vacating the conviction. In appellant's case, the
federal court order, resulting in the dismissal of his
conviction, was entered in 2009. Under section
961.03(1)(b)1., appellant should have filed the petition
within ninety days of that order in 2009. Instead, appellant
filed his petition under section 961.03 in 2017. Thus, the
trial court properly found it was untimely.
seeks to avoid the time bar by contending that Nelson v.
Colorado should be applied retroactively to authorize
this late-filed petition. We disagree for two reasons. First,
Nelson is not the type of change in law which should
be applied retroactively. Second, Nelson did not
invalidate procedural measures required to assert a
compensation claim, and the time limitation is a procedural
Nelson, the court considered whether the Colorado
Exoneration Act violated due process by requiring defendants,
whose convictions had been reversed or vacated, to prove
their innocence by clear and convincing evidence in order to
obtain a refund of costs, fees, and restitution paid. The
Supreme Court held that when a criminal conviction is
invalidated, the state may not retain funds paid to it by a
defendant pursuant to the now invalidated convictions.
Nelson, 137 S.Ct. at 1256-58. The Court particularly
held that the state may not require a defendant to prove his
or her actual innocence in order to secure return of
property. Id. at 1256. The Court concluded: "To
comport with due process, a State may not impose anything
more than minimal procedures on the refund of exactions
dependent upon a conviction subsequently invalidated."
Id. at 1258.
Court did not hold that Nelson was to be applied
retroactively. Our supreme court established in Witt v.
State, 387 So.2d 922, 929 (Fla. 1980), that a decision
will be considered retroactive only when it amounts to a