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Heare v. State

Florida Court of Appeals, Second District

October 16, 2019

ROGER HEARE, DOC #R79058, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Pat Siracusa, Judge.

          SALARIO, JUDGE.

         Roger 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.

         In 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 property.

         Mr. 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 It was revoked in 2014 and concurrent, twenty-month prison terms were imposed on the four felony counts.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 order.

         Mr. 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.

         The 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 amend.

         Based 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 rule 3.850.

         The 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.

         On 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."[1] 985 So.2d at 64.

         Although 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.

         To the 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).[2]

         We 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, ...


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