HENRY L. BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court was not bound by the prosecutor's recommendation and could impose a more severe sentence, and that the appeal regarding costs was premature without a motion to the trial court.
Henry Butler appealed his sentence for battery of a corrections officer and a judgment for attorney's fees and costs. He argued the sentence was too l…
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PER CURIAM.
Henry Butler appeals the sentence imposed upon him for battery of a corrections officer, and a final judgment assessing attorney’s fees and costs to him.
Butler asserts that the court erred in sentencing him to four-and-one-half years because the recommendation at the change-of-plea hearing was for a four-year sentence. We affirm the imposition of the four-and-one-half year sentence. The trial court was not bound by the prosecutor’s plea-bargain agreement, and could properly impose a more severe penalty upon Butler. State v. Adams, 342 So. 2d 818 (Fla.1977). Moreover, Butler has not filed a motion with the trial court to vacate his plea. See Robinson v. State, 373 So. 2d 898 (Fla.1979).
We affirm without prejudice the portion of the final judgment assessing Butler, an indigent, $200 pursuant to section 27.3455, Florida Statutes (1985). Although that section provides that an indigent is entitled upon motion to be sentenced to a term of community service in lieu of imposition of costs, Butler has made no such motion, and therefore his appeal on this point is premature. It follows that the clerk’s certificate, which denies Butler gain time for failure to pay court costs pursuant to section 27.3455(1), is proper on this record. Additionally, the statute itself, which is rationally related to the legislative purpose of assisting the agencies employed by the state to combat crime, is not constitutionally infirm. State v. Young, 238 So. 2d 589 (Fla.1970).
We reverse that part of the final judgment which assesses court costs and public defender’s fees to Butler. These costs were erroneously imposed without affording Butler a prior hearing and opportunity to object. Jenkins v. State, 444 So. 2d 947 (Fla.1984). Our decision is without prejudice to the state to seek these costs, in accordance with the procedures set forth in Jenkins.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, WALDEN and GUNTHER, JJ., concur.
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Gaffney v. State, 497 So. 2d 1292 (Fla. 5th DCA 1986)…posing costs under section 27.3455, Florida Statutes, is vacated and the cause remanded for further proceedings. AFFIRMED IN PART; REVERSED IN PART; REMANDED. COBB and COWART, JJ., concur. SHARP, J., dissents with opinion. . See Butler v. State, 492 So. 2d 757 (Fla. 4th DCA 1986); State v. Castro, 491 So. 2d 313 (Fla. 2d DCA 1986); State v. Johnson, 495 So. 2d 188 (Fla. 2d DCA 1986); Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986). See also Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d…
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Blanton v. State, 501 So. 2d 181 (Fla. 2d DCA 1987)…8 So. 2d 1371 (Fla. 1st DCA 1986). It, therefore, follows that the clerk’s certificate which denied appellant gain time for failure to pay these costs, entered on the same day the trial court imposed the costs, was improper. But see Butler v. State, 492 So. 2d 757 (Fla. 4th DCA 1986) (appeal of order imposing costs pursuant to section 27.3455 was premature where defendant failed to file motion to be sentenced to term of community service in lieu of imposition of costs). Accordingly, we strike the assessment o…
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Mays v. State, 502 So. 2d 1330 (Fla. 4th DCA 1987)…[*1331] order taxing $200 costs against appellant pursuant to section 27.3455, Florida Statutes (1985), without prejudice to appellant, upon proper motion, to seek community service in lieu of the costs as provided in this statute. Butler v. State, 492 So. 2d 757 (Fla. 4th DCA 1986). However, we reverse the trial court’s order taxing $22.50 costs pursuant to sections 960.20 and 943.-25, Florida Statutes (1985) because the trial court failed to give appellant notice and an opportunity to object to the assessm…
Previewing 3 of 7 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)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- State v. Adams, 342 So. 2d 818 (Fla. 1977)
- State v. Young, 238 So. 2d 589 (Fla. 1970)