GEORGE NEDHAM GRIMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Grimes appeals the imposition of court costs under Section 27.3455, Florida Statutes, following his guilty plea to lewd and lascivious assault on a child. The court reverses the cost assessment, holding that indigency must be determined before costs can be imposed on a defendant, and that adequate notice and opportunity to be heard are required.
Court costs under Section 27.3455 may be imposed only on non-indigent persons. Indigency must be determined at the time of sentencing, and indigent persons must be ordered to serve community service in lieu of costs. Assessment of costs against any defendant requires adequate notice, opportunity to object, and a finding of ability to pay before enforcement. The statute is constitutional.
[1] A trial court must determine a defendant's indigency at the time of sentencing and, if found indigent, must order community service in lieu of additional costs.
[2] The assessment of court costs against an indigent person is permissible only after the defendant receives adequate notice and an opportunity to object.
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Join FLexlaw to unlock all legal intelligence“In-digency is to be determined at the time of sentencing and those persons found to be indigent must be ordered to serve a term of community service in lieu of additional costs.”
Establishes the mandatory procedure for indigency determination and the requirement for community service alternative for indigent defendants.
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Join FLexlaw to unlock all legal intelligenceGrimes entered a plea bargain and pled guilty to lewd and lascivious assault on a child instead of sexual battery, a capital felony. In exchange, he r…
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JOANOS, Judge.
Grimes appeals from the imposition of costs pursuant to Section 27.3455, Florida Statutes (1985). As a result of a plea bargain with the State, appellant pled guilty to a lewd and lascivious act upon a child. The trial court assessed court costs of $200 plus $52.50, and precluded an award of gain time until the costs were paid in full. Appellant’s ore tenus motion requesting that the court declare appellant indigent for purposes of receiving community service in lieu of court costs to acquire gain time was denied.
Appellant contends that: (1) court costs pursuant to Section 27.3455 Florida Statutes were intended to be imposed only on non-indigent persons; (2) the trial court erred in assessing appellant court costs without notice and a full opportunity to object, and without a hearing to determine if he was indigent; and (3) that the statute is unconstitutional as embracing more than one subject, as well as having a defective title.
We agree with grounds one and two and disagree with his third argument. In-digency is to be determined at the time of sentencing and those persons found to be indigent must be ordered to serve a term of community service in lieu of additional costs. Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986); Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986); Day v. State, 496 So. 2d 986 (Fla. 1st DCA 1986).
Further we find that the assessment of costs against an indigent person is permissible only after a defendant is given adequate notice, and an opportunity to object. Also, the collection of the costs can be enforced only after a finding that the defendant has the ability to pay. Jenkins v. State, 444 So. 2d 947 (Fla. 1984); Hughes v. State, 497 So. 2d 938 (Fla. 1st DCA 1986). However we reject appellant’s argument that Section 27.3455 is unconstitutional in that the title is defective or that it embraces more than one subject matter. Hughes. Based on the above we find that the trial court erred in imposing court costs on appellant.
Finally appellant argues that the trial court erred in sentencing him in excess of the guidelines without a scoresheet and written reasons for departure.
We disagree. It is obvious from the record that appellant agreed in plea negotiations with the state that he would plead to a second degree felony of lewd and lascivious assault upon a child instead of being convicted of sexual battery upon a child, a capital felony. He entered this plea of guilty in exchange for a sentence of nine years in prison which exceeds the guidelines recommendation for his actual lewd assault offense conviction. Recently, when faced with similar factual circumstances, this court held that a negotiated plea which includes a sentence in excess of the guidelines constitutes a clear and convincing reason for departure. Lawson v. State, 497 So. 2d 288 (Fla. 1st DCA 1986); White v. State, 489 So. 2d 115 (Fla. 1st DCA 1986); Geter v. State, 473 So. 2d 31 (Fla. 1st DCA 1985).
Further, a scoresheet seems unnecessary in the situation where all parties have agreed on a negotiated sentence. Lawson. (But this issue has been certified to the Florida Supreme Court).
Lawson.
Accordingly we reverse only the imposition of the court costs pursuant to Section 27.3455 Florida Statutes, and remand to the trial court for further proceedings to include a determination of indigency.
THOMPSON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Thomas v. State, 517 So. 2d 132 (Fla. 4th DCA 1987)…n Snell v. State, 502 So. 2d 489 (Fla. 4th DCA 1987), rev. dismissed, 509 So. 2d 1119 (Fla.1987), a defendant is entitled to a hearing prior to the imposition of restitution. See also Jenkins v. State, 444 So. 2d 947 (Fla.1984), and Grimes v. State, 499 So. 2d 42 (Fla. 1st DCA 1986). In the case at bar, there simply was no adequate hearing on the question of his financial resources. The state argues that defense counsel did not raise an objection based on lack of financial ability. Consequently, it is urged…
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Smith v. State, 553 So. 2d 748 (Fla. 5th DCA 1989)…disagree. While it would be better form to state the negotiated plea as the written reason for departure, the plea is in the record and it alone justifies the enhanced penalty. Smith v. State, 530 So. 2d 304 (Fla.1988). See also, Grimes v. State, 499 So. 2d 42 (Fla. 1st DCA 1986). AFFIRMED. DANIEL, C.J., and GOSHORN, J., concur.…
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Orsi v. State, 515 So. 2d 268 (Fla. 2d DCA 1987)…receiving a mandatory life sentence Orsi was permitted to plead to the reduced charge of attempted sexual battery. In exchange for the reduction, Orsi stipulated to the twenty-year sentence. Under similar circumstances the court in Grimes v. State, 499 So. 2d 42 (Fla. 1st DCA 1986), upheld a departure guidelines sentence. We are convinced that Orsi would have received the same sentence notwithstanding the scoresheet error. Therefore a remand for the correction of the scoresheet and for resentencing would se…
Previewing 3 of 5 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)
- Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986)
- Bethune v. State, 492 So. 2d 404 (Fla. 2d DCA 1986)
- Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986)
- Geter v. State, 473 So. 2d 31 (Fla. 1st DCA 1985)
- Hoffman v. Kye S. Hoffman, 497 So. 2d 938 (Fla. 1st DCA 1986)
- Lawson v. State, 497 So. 2d 288 (Fla. 1st DCA 1986)
- White v. State, 489 So. 2d 115 (Fla. 1st DCA 1986)
- Donderis v. S. Commodities, Inc., 496 So. 2d 986 (Fla. 3d DCA 1986)
- Forward v. State, 496 So. 2d 986 (Fla. 1st DCA 1986)