JULIUS N. DOCTOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Julius Doctor appealed the summary denial of his motion for post-conviction relief challenging his sentence for probation violation. The Fourth District Court of Appeal affirmed the trial court's denial, finding that Doctor's claims of ineffective assistance of counsel were either untimely or involved civil restitution matters outside the scope of criminal post-conviction relief.
The court affirmed the summary denial. Doctor's claim of ineffective assistance regarding the 1992 probation conditions was untimely, and his claim regarding the restitution order failed because civil restitution liens under section 960.29 are civil, not criminal, matters outside the scope of Rule 3.850 for criminal judgments.
[1] A motion for post-conviction relief is untimely if it challenges a prior sentence that was not appealed and is not the subject of the current challenge.
[2] A claim challenging the imposition of civil restitution under section 960.29 et seq. …
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“imposition of a civil restitution lien under section 960.29 et seq. is a civil, not a criminal, action”
Establishes that restitution orders under section 960.29 are civil matters not subject to criminal post-conviction relief rules
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Join FLexlaw to unlock all legal intelligenceDoctor was sentenced in December 1992 to three years in prison plus two years of probation for grand theft, and sixty days for petit theft, with a res…
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PER CURIAM.
We affirm an order which summarily denied Appellant’s motion for rehearing from an earlier order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850.
Appellant was sentenced in December of 1992 to three years in prison, followed by two years of probation for grand theft, and sixty days in prison for petit theft. In the 1992 sentence and order of probation, a restitution order was included providing for restitution to the victims. Appellant did not appeal or otherwise challenge this sentence or restitution order. Appellant violated that probation, and was sentenced to four and one-half years in prison for that violation in December of 1994. The sentence also provided that a civil judgment for restitution, presumably under section 960.29 et seq. (Supp.1994), would be ordered. Our record does not show whether such a civil judgment ever was entered. Appellant did not file a direct appeal of that sentence for violation of probation, but in July of 1995 he did timely file a rule 8.850 motion challenging his sentence for violation of probation. In that motion, Appellant alleged that his counsel was ineffective in failing to object to the two years of probation in his original sentence and for failing to object to the initial restitution order being entered without first holding an evidentiary hearing on his ability to pay.
The trial court summarily denied the entire motion as untimely in October of 1995. Nothing was attached to the trial court’s order. Appellant timely moved for rehearing, arguing to the trial court that the motion was not untimely because he was challenging the provisions of the 1991 judgment and sentence for violation of probation and not the underlying 1992 sentence. The motion for rehearing was summarily denied by order dated October 26, 1995. That led to the instant appeal.
Appellant’s claim of ineffective assistance of counsel for failure to object to the 1992 probation, because it differed from the plea agreement, was untimely. As to Appellant’s claim of ineffective, assistance of his defense counsel for failing to object to the imposition of restitution without an evidentiary hearing, in Rosero v. State, 668 So. 2d 1114 (Fla. 4th DCA 1996), we held that imposition of a civil restitution lien under section 960.29 et seq. is a civil, not a criminal, action. Accordingly, we find no basis under rule 3.850, applicable to criminal judgments and sentences, for a claim challenging imposition of this civil relief.
GLICKSTEIN, STONE and FARMER, JJ., concur.
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Citator
Cited By
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Romahn v. State, 743 So. 2d 104 (Fla. 5th DCA 1999)…d. In fact, because Romahn was adjudicated guilty on June 23, 1997, and did not appeal, he could not have waited much longer to file his 3.850 motion without being beyond the two-year limitation period. See Fla. R.Crim. P. 3.850(b); Doctor v. State, 679 So. 2d 76 (Fla. 4th DCA 1996). REVERSED and REMANDED. DAUKSCH and COBB, JJ., concur.…
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Fla. Dep't of Corr. v. Julianne M. Holt (Fla. 2d DCA 2023)…2007). Proceedings to impose civil restitution liens pursuant to section 960.293 are civil in nature. See Goad v. Fla. Dep't of Corr., 845 So. 2d 880, 884–85 (Fla. 2003); Welsh v. State, 47 So. 3d 332, 332 (Fla. 4th DCA 2010); Doctor v. State, 679 So. 2d 76, 77 (Fla. 4th DCA 1996); Rosero v. State, 668 So. 2d 1114, 1115 (Fla. 4th DCA 1996). The fact that the court of conviction has jurisdiction to impose the lien does not render the proceedings criminal. Rather, the criminal court's authority to…
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Ford v. Sec'y, Dep't of Corr., 558 F. Supp. 2d 1220 (M.D. Fla. 2008)…fendant admits in his Motion that his counsel had ready access to the victim’s statement prior to the time the Defendant entered his plea. In accordance with Rule 3.850(b), Fla. Stat., Defendant’s Motion is untimely filed. See Doctor v. State, 679 So.2d 76 (Fla. 4th DCA 1996). In addition, the transcript of the Recorded Statement of the victim that the Defendant attached to his Motion does not contain any information about how much the Defendant drank. It just indicates he possessed a half gallon…
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