ANDREW ATKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state should have the opportunity to seek a determination of the defendant's ability to pay costs, with notice, to properly impose them.
Defendant appealed the trial court's imposition of costs. The defendant argued the cost statute violated ex post facto provisions, and that there was …
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PER CURIAM.
Defendant appeals the trial court’s imposition of costs pursuant to section 27.3455, Florida Statutes (1985).
Defendant’s first point is the argument that the application of section 27.3455 violated the ex post facto provisions of the United States and Florida Constitutions. However, 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’s second and third points are the arguments that there was no determination as to his ability to pay and no notice of the assessment of the costs so as to afford him the opportunity to object. The state concedes these points but, citing Jenkins v. State, 444 So. 2d 947 (Fla.1984), contends that the state should have the opportunity to seek, with notice to defendant, a determination of defendant’s ability to pay in order that the costs may properly be imposed. We agree with the state.
We reverse the imposition of costs and remand in order that the state may have the opportunity to properly proceed against defendant in accordance with Jenkins. See Blanton v. State, 501 So. 2d 181 (Fla. 2d DCA 1987); Beahn v. State, 499 So. 2d 74 (Fla. 2d DCA 1986). Defendant’s entitlement to gain time, which was denied for defendant’s failure to pay costs following that imposition of costs, is restored.
DANAHY, C.J., LEHAN, J„ and BOARDMAN, EDWARD F., (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)…error in the court’s assessing $200 costs against him pursuant to section 27.3455, without prior notice and without first determining appellant had the present ability to pay. The state concedes that the court erred in this respect. Atkins v. State, 506 So. 2d 10 (Fla. 2d DCA 1987); Skinner v. State, 498 So. 2d 618 (Fla. 1st DCA 1986). Therefore, we reverse and strike the costs without prejudice to the state filing a proper motion. Appellant next argues that the trial court erred in imposing restitution as…
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Arnold v. State, 505 So. 2d 1104 (Fla. 2d DCA 1987)…roceed against defendant in accordance with Jenkins. See Blanton v. State, 501 So. 2d 181 (Fla. 2d DCA 1987); Beahn v. State, 499 So. 2d 74 (Fla. 2d DCA 1986). Any failure to pay costs has not-disentitled defendant to gain time. See Atkins v. State, 506 So. 2d 10 (Fla. 2d DCA 1987). The conviction is affirmed. The cause is remanded for the state to have the opportunity to proceed against defendant for costs. SCHEB, A.C.J., and RYDER and LEHAN, JJ., concur.…
Authorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986)
- Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986)
- Boston v. Antinori & Thury, P.A., 500 So. 2d 721 (Fla. 2d DCA 1987)
- Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986)
- Quirino Maldonado v. State, 498 So. 2d 1057 (Fla. 2d DCA 1986)
- Loring v. State, 499 So. 2d 74 (Fla. 2d DCA 1986)
- Blanton v. State, 501 So. 2d 181 (Fla. 2d DCA 1987)