RAMANAND J. DUKHARAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2012-08-24
Nos. 2D10-5602, 2D11-3487
KHOUZAM and MORRIS, JJ., Concur.
96 So. 3d 454 Florida District Court of Appeal, Second District (2012) Caution
Cited by 2 cases

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Synopsis

Ramanand Dukharan appeals orders denying four postconviction motions following his 2009 conviction for lewd and lascivious battery of a minor. The court affirmed denials of three motions but reversed and remanded the denial of his motion to modify probation conditions, finding the trial court erred by denying the motion without a hearing.


Holding

The court affirmed the denials of the sexual offender registration removal motion and the illegal/clarified sentence motions, but reversed the denial of the motion to modify probation conditions, holding that the trial court erred by denying the facially sufficient motion without conducting a hearing and allowing both parties to present arguments.


Headnotes

[1] A defendant is statutorily ineligible for removal of the sexual offender registration requirement if the defendant is more than four years older than the victim.

[2] A motion to correct an illegal sentence must allege that the sentence itself is illegal, not merely that a document related to the sentence was served late.

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Key Quotes

“Mr. Dukharan has filed a facially sufficient motion to modify the conditions of his probation. The trial court erred by denying the motion without conducting a hearing and providing both Mr. Dukharan and the young woman, who is the victim, an opportunity to present their arguments for modification of the conditions of Mr. Dukharan's probation.”

Establishes that a facially sufficient motion to modify probation conditions requires a hearing, and the trial court must allow both the defendant and victim to present arguments.

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Facts & Procedural History

In 2005-2006, Dukharan, who was over twenty-one, had sexual relations with a fifteen-year-old girl, resulting in a child's birth. He was convicted in …

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Opinion of the Court
ALTENBERND, Judge.

*455ALTENBERND, Judge.

Ramanand J. Dukharan appeals two orders disposing of four postconviction motions. We affirm the rulings as to three of the motions and remand for a hearing on the fourth motion.

In 2005 and 2006, Mr. Dukharan had sexual relations with a fifteen-year-old girl. He was over twenty-one years of age at the time. As a result of this sexual activity, he was charged with and convicted of two counts of lewd and lascivious battery in 2009. He received sentences of two years’ incarceration followed by ten years’ sex offender probation.

In his various motions and accompanying affidavits, Mr. Dukharan explains that his relations with the young woman resulted in the birth .of a child. He wants to care for the child and raise the child in a normal family setting. The young woman, who is legally his victim, is now an adult. She wants to reside with him and raise the child in a family setting. The defendant’s mother lives with him and is supportive of his plan for a multigenerational family in their home. But the conditions of Mr. Dukharan’s probation treat the woman as a victim and require that he have no contact with her or the child.

In case number 2D10-5602, Mr. Dukharan appeals an order denying his motion filed under section 943.04354, Florida Statutes (2010), for removal of the requirement that he register as a sexual offender. He was entitled to seek removal at this time because his offense occurred prior to July 1, 2007. See § 943.04354(3)(a)(l); cf. Clark v. State, 95 So.3d 986 (Fla. 2d DCA 2012). Nevertheless, he is considerably more than four years older than the young woman and, thus, is statutorily ineligible for this relief. See § 943.04354(1)(c); State v. Welch, 94 So.3d 631 (Fla. 2d DCA 2012).

In case number 2D11-3487, Mr. Dukharan appeals an order that first denies his motion to correct an illegal sentence. Simply stated, his sentences are not illegal. He next challenges the part of the order denying his motion to clarify sentence. The motion claims that he was not served with a copy of his order of probation until well after the sentencing hearing, but it does not allege anything in the order of probation that actually needs to be “clarified.”

Finally, he challenges the denial of his motion to rescind or modify the conditions of his probation. In this motion, he seeks modification of the conditions of probation to permit him to live as a family with the young woman and their child. The trial court treated the motion as one filed under Florida Rule of Criminal Procedure 3.800(a) or 3.800(c) and denied it without a hearing.

This motion, however, is actually a standard motion to modify conditions of probation, which the trial court is authorized to consider under section 948.03(2), Florida Statutes (2010). Cf. Stuart v. State, 988 So.2d 1287 (Fla. 2d DCA 2008) (reviewing a similar circumstance by certiorari). Mr. Dukharan has filed a facially sufficient motion to modify the conditions of his probation. The trial court erred by denying the motion without conducting a hearing and providing both Mr. Dukharan and the young woman, who is the victim, an opportunity to present their arguments for modification of the conditions of Mr. Dukhar-an’s probation.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ., Concur.


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