Kenneth Freeman v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledJune 3, 2022
Docket2D21-3948
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
KENNETH FREEMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D21-3948
June 3, 2022
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
In its response to the postconviction court's order to show
cause, the State listed four "Known facts (from the record)" and
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.
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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
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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.
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