KENNETH FREEMAN
v.
STATE OF FLORIDA
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The appellate court reversed a lower court's denial of a motion for postconviction relief. The defendant argued his counsel was ineffective for failing to challenge restitution that included an item already recovered. The court found the defendant might have been able to amend his motion to state a sufficient claim and remanded for further proceedings.
The court held that while Freeman's motion might have been facially insufficient, he should have been given an opportunity to amend it. Therefore, the summary denial was improper.
[1] When a defendant files a timely Rule 3.850 postconviction motion that is insufficient on its face, the trial court must enter a nonfinal order allowing the defendant 60 d…
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Join FLexlaw to unlock all legal intelligence“It appears that Mr. Freeman failed to plead a facially sufficient claim upon which relief could be granted; but it cannot be said that he could not have pled a facially sufficient claim if the postconviction court had given him leave to amend.”
This quote explains the court's reasoning for reversing the lower court's decision, highlighting the potential for amendment.
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Join FLexlaw to unlock all legal intelligenceKenneth Freeman pleaded no contest to burglary and grand theft in exchange for probation. He later filed a motion for postconviction relief, alleging …
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Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Keith Spoto, Judge. Kenneth Freeman, pro se. PER CURIAM. Kenneth Freeman appeals from the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings. Mr. Freeman alleged in his timely filed rule 3.850 motion that he entered negotiated no contest pleas to burglary of a structure and grand theft. In exchange, the trial court sentenced him to concurrent terms of five years of probation, and the State entered a nolle prosequi on a dealing in stolen property charge. Mr. Freeman claimed that his trial counsel was ineffective for not challenging the State's calculation of restitution because it included the cost of a paint sprayer that was recovered from a pawn shop and released to the victim before his sentencing hearing. He alleged both that "the judge asked the state to calculate the restitution" and that the restitution calculation "was the result of a last minute decision made between the state and Defendant." Mr. Freeman did not allege that he was unaware that the paint sprayer had been recovered when he entered into the plea agreement or that his pleas were involuntary as a result of trial counsel's omission. He asked the postconviction court to "[o]rder that the present restitution amount be reduced" to account for the recovered item.1 The order reflects that a paint sprayer was pawned in Auburndale by a Lakeland woman and released to the claimant in July 2019.
three "Unknown facts." It asserted that "[t]his case was resolved by a plea in which defendant agreed to the amount of restitution"; that without additional information, "it is impossible to determine whether the amount of restitution was properly calculated"; and that Mr. Freeman "has no basis to claim his counsel was deficient [or] that he was prejudiced." The State did not cite or attach portions of the record to support its "Known facts" and assertions. Noting the State's argument that Mr. Freeman's claim is conclusory and "not supported by the evidence," the postconviction court ruled, "After review of the State's arguments, citations, and attachments to its Response, adopted and incorporated herein, the Court agrees that the Defendant's claim1 should be denied." The postconviction court did not cite or attach portions of the record to support its ruling. It appears that Mr. Freeman failed to plead a facially sufficient claim upon which relief could be granted; but it cannot be said that he could not have pled a facially sufficient claim if the postconviction court had given him leave to amend. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."). We therefore reverse and remand for further proceedings. Reversed and remanded. KELLY, BLACK, and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication.