STATE OF FLORIDA, APPELLANT,
v.
GEORGE BENNINGTON, APPELLEE
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The court held that the State's oral motion to tax costs was properly denied because it failed to provide the defendant with prior notice and an opportunity to be heard, violating due process.
The State made an oral motion to tax costs against a convicted defendant pursuant to Section 939.01, Florida Statutes. The trial court denied the moti…
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PER CURIAM.
The State appeals the denial of its oral motion to tax costs against the appellee made pursuant to Section 939.01, Florida Statutes (1977). We affirm.
Upon proper motion, Section 939.01 requires the court to include the appropriate costs of prosecution in a judgment rendered against a convicted person. However, the defendant is entitled to prior notice and an opportunity to prepare and be heard on the issue. Cf. Reeves v. State, 372 So. 2d 1016 (Fla. 2nd DCA 1979) (probationer entitled to notice prior to imposing condition of restitution). Due process requires the motion to be in writing and served on the defendant a reasonable time before the hearing on the motion. Fla.R.Crim.P. 3.060.
The failure of the State to file a written motion, giving the defendant an opportunity to prepare and be heard concerning the motion deprived the defendant of procedural due process. Accordingly, the trial court correctly denied the motion.
AFFIRMED.
MOORE, GLICKSTEIN and HURLEY, JJ., concur.
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Allen v. State, 508 So. 2d 360 (Fla. 2d DCA 1987)…f $250.” The costs of prosecution are taxable under section 939.01, Florida Statutes (1985). However, at least with respect to indigent defendants, prior notice is required. Mincey v. State, 468 So. 2d 473 (Fla. 4th DCA 1985); State v. Bennington, 384 So. 2d 42 (Fla. 4th DCA 1980); see Jenkins v. State, 444 So. 2d 947 (Fla.1984). Since appellant was declared indigent and no prior notice was given, we strike the requirement to pay costs of prosecution. The state has offered no authority for requiring a co…
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Med. Specialists OF Tampa BAY, LLC v. Kelly, 162 So. 3d 1053 (Fla. 2d DCA 2015)…, 526 So. 2d 719, 721 (Fla. 2d DCA 1988). To award costs in the [*1055] absence of a written motion and evidence and without giving-the opposing party the opportunity to be heard on the issue violates procedural due process. Cf. State v. Bennington, 384 So. 2d 42, 43 (Fla. 4th DCA 1980). Here, Kelly does not dispute that he did not file a motion seeking costs, nor did he file an affidavit or other evidence of what costs he had incurred. He also does not dispute that the trial court did not hold a hearing or…
Authorities Cited
- Reeves v. State, 372 So. 2d 1016 (Fla. 2d DCA 1979)