FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Pinellas County; Pat Siracusa, Judge.
Heare appeals from a final order summarily denying a motion
for postconviction relief by which he sought to have a
restitution order vacated on the theory, among other things,
that he did not receive notice of and was not present at the
restitution hearing. The postconviction court concluded that
these allegations were not cognizable under Florida Rule of
Criminal Procedure 3.800(a), were facially insufficient and
untimely under rule 3.850, and were refuted by the record.
Although we find no error in the summary denial under rule
3.800(a), we hold that Mr. Heare should be provided an
opportunity to amend one portion of his motion to present a
claim under rule 3.850.
2013, Mr. Heare pleaded guilty to throwing a deadly missile
at, within, or into a building, armed trespass, two counts of
criminal mischief, obstructing or resisting an officer
without violence, and violation of a domestic violence
injunction. He was sentenced to time served on the
misdemeanor counts and to three years of probation on the
felonies. Shortly after he was sentenced, the trial court
entered a restitution order naming three victims and
specifying restitution amounts Mr. Heare was obligated to pay
to each. The need for restitution flowed from the fact that
Mr. Heare's criminal conduct led to the destruction of
Heare later violated his probation. It was revoked in 2014
and concurrent, twenty-month prison terms were imposed on the
four felony counts. Mr. Heare did not appeal either his
original conviction and sentence or the revocation of his
probation. In April 2018, however, Mr. Heare filed an unsworn
postconviction motion seeking to vacate the 2013 restitution
Heare's motion did not identify a specific postconviction
rule under which he sought relief or provide legal argument
as to why he was entitled to it. He simply alleged (1) that
one of the people identified as a victim to whom restitution
was to be paid by the restitution order-we refer to him as
S.N.-was not in fact a victim in his case and (2) that he
never received notice of and was not present at the
restitution hearing such that he might have challenged the
restitution determination. He also stated that he did not
learn of the 2013 restitution order until 2018.
postconviction court considered Mr. Heare's motion both
as a motion to correct illegal sentence under rule 3.800(a),
which can be brought at any time, and as a motion for
postconviction relief under rule 3.850, which, subject to
limited exceptions, can only be brought within two years of
the judgment and sentence becoming final. See Fla.
R. Crim. P. 3.800(a), 3.850(b). It concluded that Mr.
Heare's allegations were not cognizable as a claim
relating to an illegal sentence under rule 3.800(a). Insofar
as rule 3.850 is concerned, the postconviction court
explained that the motion was filed outside the two-year
limit and was facially insufficient because it failed to
contain the oath required by rule 3.850(c). And with respect
to both rules, it determined that Mr. Heare's allegations
were conclusively refuted by the record. See Fla. R.
Crim. P. 3.800(a) ("A court may at any time correct an
illegal sentence imposed by it . . . when it is affirmatively
alleged that the court records demonstrate on their face an
entitlement to that relief . . . ."); Fla. R. Crim. P.
3.850(f)(5) (providing for summary denial of a rule 3.850
motion that is conclusively refuted by the record);
Hamilton v. State, 752 So.2d 133, 134 (Fla. 2d DCA
2000) (affirming denial of a rule 3.800(a) motion in part
because "the record attachments included by the trial
court appear to refute the claim"). It therefore
summarily denied the motion in its entirety without leave to
on our independent review, we agree that the record attached
to the postconviction court's order refutes Mr.
Heare's allegations that S.N. was improperly identified
as a victim to whom restitution was to be paid in the
restitution order. The record does not, however, refute his
allegations that he did not receive notice of the restitution
hearing and was not present at it. That leaves us with two
questions to resolve: (1) whether Mr. Heare's allegations
concerning the restitution hearing are cognizable in a motion
under rule 3.800(a) that can be brought at any time and (2)
whether Mr. Heare's motion either alleges or may be
amended to allege a facially sufficient, timely claim under
closest precedent from our court applicable to these
questions is Donaldson v. State, 985 So.2d 63 (Fla.
2d DCA 2008). In that case, after pleading guilty to a count
of aggravated battery, the defendant was sentenced to prison
time and ordered to pay restitution in an amount to be
determined at a later hearing. Id. at 64. The
defendant was not present at that later hearing, but the
trial court nonetheless determined his restitution
obligations without making a finding that the defendant had
waived his right to be present. Id. The defendant
then filed a rule 3.800(a) motion alleging that his absence
from the restitution hearing rendered his sentence illegal,
which the postconviction court denied. Id.
appeal, we affirmed the postconviction court's order to
the extent it denied relief under rule 3.800(a) because the
imposition of restitution in a defendant's absence
"is not cognizable in a rule 3.800(a) motion."
Id. As support for that holding, we quoted our
decision in Judge v. State, 596 So.2d 73, 77 (Fla.
2d DCA 1991), for the proposition that a motion to correct an
illegal sentence under rule 3.800(a) "is not . . .
designed to re-examine whether the procedure employed to
impose the punishment comported with statutory law and due
process." 985 So.2d at 64.
the defendant could not obtain relief on his claim that he
was absent from the restitution hearing under rule 3.800(a),
we also held that such a claim "is properly considered
in a motion filed under [rule] 3.850." Id.
Under that rule, the defendant's claim was both
sufficiently pleaded and timely. Id. In view of
concessions by the State that Mr. Donaldson was not present
and that the trial court did not inquire as to whether Mr.
Donaldson had waived his right to be present, we reversed the
order and remanded for a new restitution hearing.
Id. at 64-65.
extent Mr. Heare's claim is based on his absence from the
restitution hearing, Donaldson is controlling as to
the availability of relief on that claim under rule 3.800(a):
relief is not available under that rule. Further, although
Donaldson did not involve an allegation like Mr.
Heare's in this case that the defendant was not provided
notice of the restitution hearing, that error is so analogous
to the procedural error in Donaldson that we must
conclude that it too is not cognizable in a rule 3.800(a)
motion. See also Graham v. State, 160 So.3d 108, 109
(Fla. 4th DCA 2015) (holding that a defendant's claim
that he "was denied due process when the court ordered
restitution without holding a separate restitution hearing
and by failing to determine that he has the ability to
pay" was not cognizable in a rule 3.800(a) motion as an
illegal sentence). Accordingly, we affirm the postconviction
court's order to the extent it summarily denied relief
under rule 3.800(a).
therefore consider Mr. Heare's allegations under rule
3.850. We agree with the postconviction court that his motion
fails to provide an oath attesting that Mr. Heare's
allegations are true and correct as required by rule
3.850(c). We part ways with the postconviction court,