MICHAEL GIVENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that imposing costs under section 27.3455 for crimes committed before July 1, 1985, is an ex post facto violation and an illegal sentence that can be raised on appeal.
[1] A court cannot impose costs under section 27.3455, Florida Statutes (1985), for crimes committed prior to July 1, 1985.
[2] The imposition of costs pursuant to section 27.3455, Florida Statutes (1985), for crimes committed prior to the statute's effective date may be raised on appeal notwithst…
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Join FLexlaw to unlock all legal intelligenceMichael Givens was sentenced in May 1985, and the trial court imposed costs under section 27.3455, Florida Statutes (1985). The offense was committed …
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COBB, Judge.
Michael Givens appeals the imposition of costs in a sentence entered in May, 1985. Givens argues that the trial court erred in imposing costs pursuant to section 27.3455, Florida Statutes (1985). We agree.
In Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986), we held that a court cannot impose costs under section 27.3455 for crimes committed prior to July 1, 1985. We certify to the supreme court the same question we certified in Yost:
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 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)?
See also Fowler v. State, 498 So. 2d 1014 (Fla. 5th DCA 1986); Bello v. State, 497 So. 2d 1346 (Fla. 5th DCA 1986); Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986).
The state argues that this issue as not been preserved for review due to appellant’s failure to contemporaneously object. This question was answered by this court in Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986). In Webber this court held that the violation of constitutional ex post facto restrictions by imposing costs pursuant to section 27.3455 for a defendant convicted prior to the effective date of the statute, was “the type of sentencing error which may be raised on appeal notwithstanding the defendant’s failure to object at sentencing because it results in an illegal sentence.” Id. at 966.1 In support of this proposition, the Webber panel cited State v. Whitfield, 487 So. 2d 1045 (Fla.1986).
Since the offense for which Givens was sentenced was committed in May, 1985, prior to the effective date of section 27.- 3455, we reverse the order imposing court costs, and certify the foregoing question.
REVERSED.
DAUKSCH, COBB and SHARP, JJ., concur. . Contra Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986); Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986).
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Citator
Cited By
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Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)…the issue in this case and preserve the matter for appellate review. We further hold that being convicted of a crime that never occurred is error of such fundamental nature as is correctable on appeal without an objection below (see Givens v. State, 501 So. 2d 758 (Fla. 5th DCA), rev. denied, 511 So. 2d 999 (Fla.1987); Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986), approved, 509 So. 2d 926 (Fla.1987)), and must be reversed “in the interest of justice” (see Tibbs v. State, 397 So. 2d 1120 (Fla.1981), aff…
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Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987)…2d DCA 1986), and Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986). Thus application of the statute results in an illegal sentence, State v. Whitfield, 487 So. 2d 1045 (Fla.1986), and can be raised for the first time on appeal. Givens v. State, 501 So. 2d 758 (Fla. 5th DCA 1986). The trial court’s imposition of costs in the amount of $200 remains a part of Ghianuly’s sentence but we strike that portion conditioning the accrual of gain time. This matter is remanded to the trial court for correction of t…
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McBRIDE v. State, 508 So. 2d 772 (Fla. 5th DCA 1987)…99 (Fla.1987); Gordon v. State, 497 So. 2d 661 (Fla. 5th DCA 1986); Miller v. State, 492 So. 2d 1191 (Fla. 5th DCA 1986). Although McBride failed to raise this issue below, we have held it may be raised for the first time on appeal. Givens v. State, 501 So. 2d 758 (Fla. 5th DCA 1987); Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986). Contra. Vogtsberger v. State, 502 So. 2d 984, 985 (Fla. 1st DCA 1987); Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986). We therefore quash that portion of the sentence im…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986)
- Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986)
- Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986)
- Wanita Robinson v. State, 488 So. 2d 925 (Fla. 5th DCA 1986)
- Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986)
- Fowler v. State, 498 So. 2d 1014 (Fla. 5th DCA 1986)
- Bello v. State, 497 So. 2d 1346 (Fla. 5th DCA 1986)