ROBERT LEE MCDOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert McDowell appealed his conviction and sentence, challenging the imposition of court costs on an indigent defendant and the validity of a departure sentence. The Florida appellate court affirmed the conviction but reversed the cost assessment and remanded for entry of a probation order.
The conviction is affirmed, but the judgment for costs is reversed and remanded. The court found that the departure sentence was not actually a valid departure because the split sentence (4.5 years incarceration plus 15 years probation) did not exceed the sentence authorized by general law, so written reasons for departure were not required.
[1] Assessment of court costs against an indigent defendant is improper absent a finding of ability to pay.
[2] Application of a statute amending costs of the legal process to crimes committed before its effective date may violate the ex post facto doctrine.
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Join FLexlaw to unlock all legal intelligence“The total sentence cannot exceed the total guideline sentence unless a written reason is given.”
Florida Rule of Criminal Procedure 3.701(d)(12) establishing the requirement for departure sentences
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Join FLexlaw to unlock all legal intelligenceMcDowell was convicted of a first-degree felony. The trial court imposed court costs despite McDowell's indigency and imposed a sentence of four and o…
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UPCHURCH, Chief Judge.
Robert McDowell appeals from his conviction and sentence. We affirm the conviction, but reverse the sentence in part.
The first question presented is whether the trial court properly imposed court costs on an indigent defendant. McDowell contends that assessment of costs was improper because: 1) costs cannot be assessed absent a finding the defendant has the ability to pay, Jenkins v. State, 444 So. 2d 947 (Fla.1984); Snow v. State, 448 So. 2d 1246 (Fla. 5th DCA 1984); and 2) the assessment of costs under section 27.3455, Florida Statutes (1985) constitutes a violation of the ex post facto doctrine. McDowell also contends that if section 27.3455 applies, he is eligible for community service in lieu of the fine. The state responds that the order can be assessed against an indigent defendant but the order cannot be enforced unless there is a finding of indi-gency when probation commences and jur-ísdiction is retained by the court. The state also contends that the ex post facto doctrine does not apply since section 27.-3455 does not punish for a specific crime but amends the costs of the legal process to comport with legislative evaluations.
This court has recently addressed whether application of section 27.3455 to crimes committed before its effective date violates the ex post facto doctrine and concluded that there was a violation. Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). In Yost we certified this question1 to the Florida Supreme Court. We again certify that question.
The next question presented is whether the trial court provided valid reasons to support a departure sentence. One of the reasons given by the trial court for departure was: “The defendant has previously been engaged in criminal acts and is in need of long term supervision.” We agree that the reason given was invalid under Hendrix v. State, 475 So. 2d 1218 (Fla.1985), however, the sentence of four and one-half year term of imprisonment and fifteen years of probation does not qualify as a departure sentence under Florida Rule of Criminal Procedure 3.701(d)(12) since the “split sentence” did not exceed that authorized by general law. Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985); O’Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985); Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985). Florida Rule of Criminal Procedure 3.701(d)(12) provides that “[t]he total sentence cannot exceed the total guideline sentence unless a written reason is given.” Here the correct guideline sentence range was three and one-half to four and one-half years and the sentence imposed was four and one-half years plus fifteen years probation.
The 1983 committee notes to rule 3.701(d)(12) provide that if a split sentence is imposed the total sanction (incarceration and probation) shall not exceed the term provided by general law. Since the primary offense was a first degree felony punishable by a maximum of thirty years imprisonment and a $10,000 fine, the split sentence was within the statutory maximum. See §§ 775.082 and 775.088, Fla. Stat. (1985). Therefore, the trial court was not required to give written reasons for departure.
The judgment for costs is reversed and we remand for entry of an order of probation.2 In all other respects, the judgment is affirmed.
AFFIRMED in part; REVERSED and REMANDED in part.
DAUKSCH and SHARP, JJ., concur. . The question certified by this court to the supreme court was:
Does the application of section 27.3455, Florida Statutes (1985) to crimes committed prior to the effective date of the statute violate the ex post facto provisions of the constitutions of the United States and of the state of Florida, or does the statute merely effect a procedural change as is permitted under State v. Jackson, 478 So. 2d 1054 (Fla.1985)?
. No order of probation was filed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McKEE v. State, 528 So. 2d 417 (Fla. 5th DCA 1988)…the guideline range, and the total split sentence is within the statutory limit for a third-degree felony, five years. See McKinley v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988); Posey v. State, 501 So. 2d 192 (Fla. 5th DCA 1987); McDowell v. State, 491 So. 2d 594 (Fla. 5th DCA 1986), approved in part, quashed in part, 509 So. 2d 927 (Fla. 1987); see also Committee Note, Fla.R.Crim.P. 3.701(d)(12).1 In the instant case, the incarcerative period is two years, which falls within the guideline range. From the c…
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Posey v. State, 501 So. 2d 192 (Fla. 5th DCA 1987)…Initially, it should be pointed out that the sentence imposed by the court is not a departure sentence, since the term of imprisonment is within the guideline range, and the total split sentence is within the statutory limits. See McDowell v. State, 491 So. 2d 594 (Fla. 5th DCA 1986). [*194] While the trial court entered a written order in this case on adult sanctions, the order does not in any manner address one of the factors listed as those to be considered in section 39.111(6)(e), Florida Statutes (1985),…
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Stone v. State, 500 So. 2d 572 (Fla. 2d DCA 1986)…986); Gordon v. State, 497 So. 2d 661 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 784 (Fla. 5th DCA 1986); Signorelli v. State, 491 So. 2d 349 (Fla. 4th DCA 1986); Moseley v. State, 491 So. 2d 336 (Fla. 3d DCA 1986); McDowell v. [*574] State, 491 So. 2d 594 (Fla. 5th DCA 1986); Freeney v. State, 493 So. 2d 9 (Fla. 5th DCA 1986); Williams v. State, 492 So. 2d 1098 (Fla. 5th DCA 1986); Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986).…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986)
- O'Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985)
- Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985)
- Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985)
- State v. Ross, 448 So. 2d 1246 (Fla. 5th DCA 1984)
- Snow v. State, 448 So. 2d 1246 (Fla. 5th DCA 1984)