RAYMOND LEE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court correctly denied the motion to dismiss based on entrapment, but vacated probation conditions related to attorney's fees and costs due to lack of notice and hearing.
[1] The use of a police decoy, dressed in old clothes and feigning illness or intoxication with money displayed, to solicit criminal activity does not constitute entrapment a…
[2] An order assessing attorney's fees and costs against a defendant may be vacated if the trial court fails to provide the required notice and hearing.
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Join FLexlaw to unlock all legal intelligenceDefendant was arrested after taking money from a police decoy. He moved to dismiss the charges, arguing entrapment, and appealed the denial of this mo…
The full statement of facts, procedural history, and disposition for this case are member content.
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OTT, Chief Judge.
Raymond Lee Smith pled nolo contendere to grand theft in the second degree, specifically reserving his right to appeal the trial court’s denial of his motion to dismiss based on entrapment. He also claims error in the imposition of certain conditions of probation.
According to the motion to dismiss, the Tampa Police Department deployed a decoy at Kennedy Boulevard and Bernard Avenue in Tampa on January 13, 1982. The police decoy was dressed in old clothes and acted sick or drunk. He had $150 protruding from a pocket. Defendant was not a suspect or a target of the decoy. However, at 9:20 p.m., he approached, the decoy and removed the money from the decoy’s pocket. Defendant was immediately arrested.
The trial court correctly denied defendant’s motion for dismissal on the ground that the use of a police decoy in the manner described above is entrapment as a matter of law. See State v. Cruz, 426 So. 2d 1308 (Fla. 2d DCA 1983), petition for review granted, No. 63,451 (Fla.1983); State v. Goldstein, 435 So. 2d 352 (Fla. 2d DCA 1983). But see State v. Casper, 417 So. 2d 263 (Fla. 1st DCA 1982); State v. Holliday, 431 So. 2d 309 (Fla. 1st DCA 1983), petition for review granted, No. 63,832 (Fla.1983).
Conditions of probation 10 and 17 relate to payment of attorney’s fees and court costs. In Anderson v. State, 415 So. 2d 49 (Fla. 2d DCA 1982), this court concluded that such costs can properly be recovered from an insolvent defendant. However, the record does not indicate that the court entered its order with the notice and hearing required by section 27.56(7), Florida Statutes (1981). Accordingly, the order assessing attorney’s fees and costs is hereby VACATED and the case is REMANDED for a hearing consistent with these matters. See Drumm v. State, 432 So. 2d 765 (Fla. 2d DCA 1983); Benton v. State, 440 So. 2d 493 (Fla. 2d DCA 1983).
We find no error in imposition of the remaining conditions of probation.
AFFIRMED as modified.
SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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S.A. v. State, 458 So. 2d 405 (Fla. 3d DCA 1984)…PER CURIAM. Affirmed. See Smith v. State, 441 So. 2d 1162 (Fla. 2d DCA 1983), pet. for rev. granted, No. 64,678 (Fla.1984); State v. Cruz, 426 So. 2d 1308 (Fla. 2d DCA), pet. for rev. granted, No. 63,451 (Fla.1983). But see State v. Holliday, 431 So. 2d 309 (Fla. 1st DCA), pet. for rev. granted, No. 63,832…
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Smith v. State, 468 So. 2d 984 (Fla. 1985)…t. The facts are legally indistinguishable from those in Cruz v. State, 465 So. 2d 516 (Fla.1985). As we find in Cruz, the decoy ruse constituted entrapment as a matter of law. Accordingly, we quash the opinion of the district court, Smith v. State, 441 So. 2d 1162 (Fla. 2d DCA 1983), and remand for action consistent with this opinion. It is so ordered. BOYD, C.J., and ADKINS, OVERTON, McDonald, EHRLICH and SHAW, JJ., concur. ALDERMAN, J., dissents.…
Authorities Cited
- State v. Casper, 417 So. 2d 263 (Fla. 1st DCA 1982)
- State v. Cruz, 426 So. 2d 1308 (Fla. 2d DCA 1983)
- State v. Thaddeus Tyrone Holliday, 431 So. 2d 309 (Fla. 1st DCA 1983)
- Drumm v. State, 432 So. 2d 765 (Fla. 2d DCA 1983)
- Zdenka Slomovic v. McLOON, 415 So. 2d 49 (Fla. 4th DCA 1982)
- Anderson v. State, 415 So. 2d 49 (Fla. 2d DCA 1982)
- Goldstein v. State, 435 So. 2d 352 (Fla. 2d DCA 1983)
- Jelinek v. Miles Jelinek, 440 So. 2d 493 (Fla. 4th DCA 1983)