FREEMAN v. STATE (2022)

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

In its response to the postconviction court's order to show cause, the State listed four "Known facts (from the record)" and 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 claim 1 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.

FOOTNOTES

1.   Mr. Freeman attached to his motion a Polk County Sheriff's Office property order. The order reflects that a paint sprayer was pawned in Auburndale by a Lakeland woman and released to the claimant in July 2019.

PER CURIAM.

KELLY, BLACK, and LUCAS, JJ., Concur.