        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        DAVID KELLY BREWSTER,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-1980

                              [June 13, 2018]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case Nos.
312002CF1339A, 312002CF720A, 312002CF001483A.

   David K. Brewster, Ft. Pierce, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

WARNER, J.

   We deny the motion for rehearing but grant appellant’s motion for
written opinion. We withdraw the per curiam affirmance and substitute
the following in its place.

    Appellant, David Brewster, appeals an Order Denying Motion for
Damages, for Return of Restitution and Compensation, which the court
dismissed as untimely filed pursuant to section 961.03, Florida Statutes
(2017). The court also ruled that Nelson v. Colorado, 137 S. Ct. 1249
(2017), requiring the return of fees, costs, and restitution after a conviction
has been overturned, could not be applied retroactively. We agree with the
trial court and affirm.

   Appellant was originally charged in case number 02-720 with grand
theft and uttering a forged instrument. In another case, 02-1339, he was
charged with executing a scheme to defraud a financial institution, and in
a third case, 02-1483, he was charged with counterfeiting a license tag.
He entered into a plea agreement with the State on all three charges,
whereby he agreed to plead no contest and to pay restitution in 02-720
and 02-1339. In turn, he would be sentenced to a three-year term of
probation in 02-1339. The trial court entered a final judgment of
conviction and sentence upon the charges.

   Subsequently, in 2009, a federal court vacated his conviction in 02-
1339. 1 Brewster v. McNeil, 720 F. Supp. 2d 1369 (S.D. Fla. 2009).
Brewster then filed a motion to correct sentence. He argued that the
vacation of his conviction in 02-1339 affected his negotiated plea
agreement in the other two cases. The trial court rejected this argument
as the restitution payments were part of a plea agreement on all three
cases, and the convictions on the other two had not been vacated.

   Years later, in 2017, appellant filed in all three cases a “Motion for
Damages, For Return of Restitution and Compensation Pursuant to Nelson
v. Colorado, 581 U.S. —, 137 S. Ct. 1249 (2017).” Appellant sought the
return of the restitution amounts paid in 02-720 and 02-1339. He also
sought damages for his illegal detention and false imprisonment. The trial
court denied the relief on the grounds that the petition was untimely filed
pursuant to section 961.03, Florida Statutes (2017), the Wrongful
Conviction Act. The court also concluded that neither the U.S. Supreme
Court nor the Florida Supreme Court has held that Nelson applies
retroactively. The court dismissed his motion for return of restitution and
compensation. Brewster now appeals the trial court’s dismissal of his
motion.

   We review the trial court’s ruling de novo, as statutory construction is
a question of law. See Bartek v. State, 198 So. 3d 1009 (Fla. 5th DCA
2016).

   Pursuant to section 961.01, Florida Statutes (2017), the legislature
created the Victims of Wrongful Incarceration Compensation Act,
permitting compensation to persons wrongfully convicted of crimes.
Under the act, a person is entitled to compensation for wrongful
incarceration, including costs, fines, and attorney’s fees, due to his
wrongful conviction. § 961.06, Fla. Stat. (2017). Section 961.03(1)(b)1.,
Florida Statutes (2017), requires that a petition for compensation be filed
within ninety days of the order vacating the conviction. In appellant’s case,

1 The federal opinion explains that he was convicted under section 655.0322(6),
Florida Statutes, which was modeled on the federal bank fraud statute, for
passing bad checks. The court held that writing a check which is unsupported
by sufficient funds is not a fraudulent representation to a bank.

                                      2
the federal court order, resulting in the dismissal of his conviction, was
entered in 2009. Under section 961.03(1)(b)1., appellant should have filed
the petition within ninety days of that order in 2009. Instead, appellant
filed his petition under section 961.03 in 2017. Thus, the trial court
properly found it was untimely.

   Appellant seeks to avoid the time bar by contending that Nelson v.
Colorado should be applied retroactively to authorize this late-filed
petition. We disagree for two reasons. First, Nelson is not the type of
change in law which should be applied retroactively. Second, Nelson did
not invalidate procedural measures required to assert a compensation
claim, and the time limitation is a procedural measure.

   In Nelson, the court considered whether the Colorado Exoneration Act
violated due process by requiring defendants, whose convictions had been
reversed or vacated, to prove their innocence by clear and convincing
evidence in order to obtain a refund of costs, fees, and restitution paid.
The Supreme Court held that when a criminal conviction is invalidated,
the state may not retain funds paid to it by a defendant pursuant to the
now invalidated convictions. Nelson, 137 S. Ct. at 1256-58. The Court
particularly held that the state may not require a defendant to prove his
or her actual innocence in order to secure return of property. Id. at 1256.
The Court concluded: “To comport with due process, a State may not
impose anything more than minimal procedures on the refund of exactions
dependent upon a conviction subsequently invalidated.” Id. at 1258.

   The Court did not hold that Nelson was to be applied retroactively. Our
supreme court established in Witt v. State, 387 So. 2d 922, 929 (Fla. 1980),
that a decision will be considered retroactive only when it amounts to a
major jurisdictional upheaval in the law. It explained that these fall into
two categories:

      Although specific determinations regarding the significance of
      various legal developments must be made on a case-by-case
      basis, history shows that most major constitutional changes
      are likely to fall within two broad categories. The first are
      those changes of law which place beyond the authority of the
      state the power to regulate certain conduct or impose certain
      penalties. This category is exemplified by Coker v. Georgia,
      433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), which
      held that the imposition of the death penalty for the crime of
      rape of an adult woman is forbidden by the eighth amendment
      as cruel and unusual punishment. The second are those
      changes of law which are of sufficient magnitude to

                                     3
      necessitate retroactive application as ascertained by the
      three-fold test of Stovall [v. Denno, 388 U.S. 293, 87 S. Ct.
      1967, 18 L. Ed. 2d 1199 (1967)] and Linkletter [v. Walker, 381,
      U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965)]. Gideon v.
      Wainwright, of course, is the prime example of a law change
      included within this category.

Id. In contrast, those decisions which amount to an evolutionary change
in the law will not be applied retroactively:

      In contrast to these jurisprudential upheavals are
      evolutionary refinements in the criminal law, affording new or
      different standards for the admissibility of evidence, for
      procedural fairness, for proportionality review of capital cases,
      and for other like matters.          Emergent rights in these
      categories, or the retraction of former rights of this genre, do
      not compel an abridgement of the finality of judgments. To
      allow them that impact would, we are convinced, destroy the
      stability of the law, render punishments uncertain and
      therefore ineffectual, and burden the judicial machinery of our
      state, fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30 (emphasis supplied). As Nelson involved procedural fairness
in the proceeding, it is an evolutionary refinement of the law, not a major
jurisdictional upheaval. See also Regan v. State, 787 So. 2d 265, 267-68
(Fla. 1st DCA 2001) (distinguishing between “jurisprudential upheavals”
in the law, which warrant retroactive application under Witt, and those
changes which are evolutionary refinements).

    A second reason that Nelson does not apply is that in Nelson, the Court
allowed “minimal procedures” for seeking a refund. Nelson, 137 S. Ct. at
1258. We consider a time limit for seeking a refund as such a minimal
procedure. Surely, requiring a defendant to bring a demand for refund
within reasonable time limits is not onerous to the defendant and brings
reason and order to the refund process.

   For the foregoing reasons, we affirm the order dismissing appellant’s
claim for refund of restitution, and hold that Nelson v. Colorado cannot be
retroactively applied to this untimely petition.

   Affirmed.

GROSS and LEVINE, JJ., concur.


                                     4
