ALPHONSO BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alphonso Brown appeals his conviction for living off the earnings of a prostitute under Florida law. The appellate court affirmed the conviction but reversed and remanded the sentence due to improper departure from sentencing guidelines without written reasons and improper imposition of costs without notice.
The constitutional challenge to section 796.05 is without merit and the conviction is affirmed. However, the sentencing constituted an impermissible departure from the guidelines without written reasons for departure, and the $1,000 costs were imposed without required notice. The sentence and costs are reversed and remanded for correction or entry of written reasons.
[1] A constitutional challenge to section 796.05, Florida Statutes (1983), is without merit.
[2] A sentence of community control constitutes a departure from the sentencing guidelines when the guidelines recommend any non-state prison sanction.
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Join FLexlaw to unlock all legal intelligence“where the guidelines recommendation is 'any non-state prison sanction,' a sentence of community control constitutes a departure from the sentencing guidelines”
Establishes the legal standard that community control exceeds the permissible range when guidelines recommend any non-state prison sanction
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Join FLexlaw to unlock all legal intelligenceAppellant Alphonso Brown was adjudicated guilty of living off the earnings of a prostitute in violation of section 796.05, Florida Statutes (1983). Th…
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PER CURIAM.
Appellant appeals the judgment and sentence resulting from his adjudication of guilty of living off the earnings of a, prostitute in violation of section 796.05, Florida Statutes (1983). Appellant raises a number of points on appeal, only three of which we discuss.
We have considered each of the issues presented by the appellant including his attack on the constitutionality of section 796.05, Florida Statutes (1983). His constitutional challenge is without merit. See Eaton v. State, 481 So. 2d 1254 (Fla. 3d DCA 1986). We affirm his conviction.
We do find merit, however, in appellant’s argument that the court erred in sentencing him. The sentencing guidelines recommended any nonstate prison sanction. The court instead sentenced appellant to two years’ community control. The supreme court has recently held that where the guidelines recommendation is “any non-state prison sanction,” a sentence of community control constitutes a departure from the sentencing guidelines. State v. Mestas, 507 So. 2d 587 (Fla.1987). Since there were no written reasons for departure, we reverse and remand for either correction of the sentence or entry of written reasons supporting the departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985); State v. Bruner, 503 So. 2d 457 (Fla. 2d DCA 1987).
Appellant also correctly asserts that the court erred in imposing $1,000 costs without prior notice. Jenkins v. State, 444 So. 2d 947 (Fla.1984). We, therefore, strike the costs without prejudice to the state seeking imposition of costs after appropriate notice and hearing. Dilla v. State, 503 So. 2d 1316 (Fla. 2d DCA 1987). In addition, the record reveals that the court failed to cite proper statutory authority for assessing the $1,000 costs. On remand if the court assesses costs, the court must cite proper statutory authority. See Allen v. State, 508 So. 2d 360 (Fla. 2d DCA 1987).
We affirm the conviction and reverse the sentence. The assessment of costs is stricken. This matter is remanded to the trial court for further proceedings consistent with this opinion.
PRANK, A.C.J., SANDERLIN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (31 total)
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Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)…ed without notice to a defendant. State v. Beasley, 580 So. 2d 139 (Fla.1991). However, as we have consistently held, the record must contain a citation to the proper statutory authority supporting the assessment of such costs. E.g., Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA), rev. denied, 515 So. 2d 229 (Fla.1987). In this case, the record contains no such statutory reference. We have also held that discretionary costs such as those assessed for the court improvement fund, the drug education fund, and cos…
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Tennie v. State, 593 So. 2d 1199 (Fla. 2d DCA 1992)…e and remand for a new trial. Our disposition of the peremptory challenge issue renders moot the imposition of costs issue. We note, however, that proper statutory authority must be cited in support of the imposition of court costs. Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA), review denied, 515 So. 2d 229 (Fla.1987). We also note that in imposing costs of prosecution under section 939.01(6), Florida Statutes (1989), the state attorney must demonstrate the amount of such costs and the trial court must consi…
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Darrin Bartholemew Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988)…costs. The appellant, therefore, had no real opportunity to object to the costs as would normally be required by this court’s holding in Henriquez v. State, 513 So. 2d 1285 (Fla. 2d DCA 1987). We, accordingly, strike these costs. See Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA), petition for review denied, 515 So. 2d 229 (Fla.1987). Should the trial court decide to again impose costs, it must cite proper statutory authority, see Brown, and provide the appellant with adequate notice as required by Jenkins v. S…
Previewing 3 of 31 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)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Allen v. State, 508 So. 2d 360 (Fla. 2d DCA 1987)
- Dilla v. State, 503 So. 2d 1316 (Fla. 2d DCA 1987)
- State v. Bruner, 503 So. 2d 457 (Fla. 2d DCA 1987)
- Al Smith v. State, 503 So. 2d 457 (Fla. 2d DCA 1987)
- Eaton v. State, 481 So. 2d 1254 (Fla. 3d DCA 1986)