QUIRINO MALDONADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Maldonado pleaded nolo contendere to shooting at a motor vehicle and was sentenced with court costs imposed. On appeal, he challenged the imposition of certain costs as violating ex post facto protections and procedural safeguards, and the court partially vacated the judgment.
The court vacated the imposition of costs under section 27.3455 as an ex post facto violation and remanded for the trial court to comply with Jenkins procedural safeguards before imposing costs under sections 960.20 and 943.25(4). The court did not reach the ability-to-pay issue because the ex post facto violation rendered it moot.
[1] A trial court errs by imposing court costs in a written judgment when no costs were pronounced at the sentencing hearing.
[2] A defendant cannot be expected to object to court costs before the trial court when the costs are first mentioned in the written judgment.
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Join FLexlaw to unlock all legal intelligence“It is axiomatic that appellant could not object to something that he did not know was being imposed.”
The court's rationale for allowing the ex post facto argument despite lack of objection at trial, since costs were never announced at sentencing
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with shooting at, within, or into a motor vehicle and entered a plea of nolo contendere. He was adjudicated guilty and sentenced…
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RYDER, Acting Chief Judge.
Appellant was charged by information with shooting at, within or into a motor vehicle. He entered a plea of nolo conten-dere. He was adjudicated guilty and sentenced within the guidelines. Although the court did not pronounce the imposition of costs at the sentencing hearing, the written judgment imposed court costs of $200.00 pursuant to section 27.3455, Florida Statutes (1985), $20.00 pursuant to section 960.-20, Florida Statutes (1985), and $2.00 pursuant to section 943.25(4), Florida Statutes (1985).
Appellant’s first point on appeal is that section 27.3455, as applied to him violates ex post facto provisions of the United States and Florida Constitutions. The crime of which appellant was convicted occurred on March 18,1985, and the effective date of the statute was July 1, 1985. The state argues that appellant did not complain of the potential ex post facto claim in the lower court and may not initiate the argument on appeal. The state’s argument is valid on its face, but a review of the record indicates that the trial judge never pronounced the imposition of costs at the sentencing hearing. The first mention of costs in the record is on the written judgment. It is axiomatic that appellant could not object to something that he did not know was being imposed. Therefore, we reach appellant’s ex post facto argument.
This court has previously decided this issue. Bowman v. State, 495 So. 2d 868 (Fla.2d DCA 1986). We follow the Bowman decision. Accordingly, we vacate that portion of the judgment in this case imposing court costs pursuant to section 27.3455, Florida Statutes (1985). We also certify the question set out in Bowman to the Florida Supreme Court as a question of great public importance.
Appellant’s second point on appeal is that the trial court’s imposition of costs pursuant to sections 960.20 and 943.25(4), Florida Statutes (1985), did not comport with the procecdural safeguards set out in Jenkins v. State, 444 So. 2d 947 (Fla.1984). We agree. Again, as above, the first mention of the imposition of costs pursuant to these sections is contained in the written judgment — nothing was said at the sentencing hearing. Accordingly, we must vacate the imposition of costs pursuant to these sections and remand with instructions that the trial court is to comply with Jenkins before costs pursuant to these sections can be imposed.
Appellant’s third point on appeal is that before the trial court can impose costs pursuant to section 27.3455, a determination must be made that the defendant has the present ability to pay. Because we vacated costs pursuant to this section because of an ex post facto violation, we do not reach this point on appeal. However, we note that the statute appears to have sufficient procedural safeguards. But see Lawton v. State, 492 So. 2d 404, 407 (Fla. 1st DCA 1986).
Conviction affirmed. Judgment affirmed in part, reversed in part, and remanded with instructions.
CAMPBELL and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sescon v. State, 506 So. 2d 45 (Fla. 2d DCA 1987)…g he did not know was being imposed. Therefore, we reach the defendant’s ex post facto argument on section 27.3455 costs. [*46] This court has previously decided this issue. See Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986); Maldonado v. State, 498 So. 2d 1057 (Fla. 2d DCA 1986). Accordingly, we vacate that portion of the judgment in this case imposing court costs pursuant to section 27.3455, Florida Statutes (1985). We also certify the question set out in Bowman to the Florida Supreme Court as a question…
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State v. Bowman, 509 So. 2d 929 (Fla. 1987)…d 1285 (Fla. 2d DCA 1987); Monroe v. State, 502 So. 2d 981 (Fla. 2d DCA 1987); Atyeo v. State, 500 So. 2d 591 (Fla. 2d DCA 1986); Fitte v. State, 499 So. 2d 28 (Fla. 2d DCA 1986); Baker v. State, 499 So. 2d 15 (Fla. 2d DCA 1986); Maldonado v. State, 498 So. 2d 1057 (Fla. 2d DCA 1986); Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986).…
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Arnold v. State, 505 So. 2d 1104 (Fla. 2d DCA 1987)…, it appears that defendant did not raise this point in the trial court and therefore failed to preserve it for appeal. See Parker v. State, 500 So. 2d 721 (Fla. 2d DCA 1987); Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986); Maldonado v. State, 498 So. 2d 1057 (Fla. 2d DCA 1986); Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986); contra Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986). Defendant additionally contends that there was error because there was no determination as to his ability to pay, a…
Previewing 3 of 4 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)
- Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986)
- Bethune v. State, 492 So. 2d 404 (Fla. 2d DCA 1986)
- Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986)