JOHN WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Williams appealed his probation sentence following his nolo contendere plea to burglary and petit theft, challenging the imposition of court costs, attorney's fees, and restitution. The appellate court affirmed the costs assessment but reversed and remanded regarding the section 960.20 costs (due to lack of notice and hearing), the statutory basis for attorney's fees, and the restitution determination (which was improperly delegated to a probation officer).
The court affirmed the section 27.3455 costs assessment (holding appellant waived the ex post facto argument by failing to raise it at trial), reversed the section 960.20 costs assessment (improper imposition without notice and hearing), corrected the attorney's fees assessment to section 27.56, and remanded for judicial determination of restitution amount (finding the delegation to probation officer improper, though the restitution condition itself could be imposed if proper procedures were followed).
[1] A defendant waives the right to assert an ex post facto argument on appeal by failing to raise the objection in the trial court.
[2] A trial court must afford a defendant notice and a hearing before assessing costs under section 960.20, Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“appellant failed to raise this objection in the trial court; therefore, he has waived the right to assert his ex post facto argument on appeal”
Establishes that failure to object at trial waives appellate review of ex post facto claims
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded nolo contendere to burglary and petit theft committed on March 13, 1985. He had been adjudicated indigent for purposes of trial. The …
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SANDERLIN, Judge.
Appellant challenges the orders placing him on probation following his plea of nolo contendere to the charges of burglary and petit theft. For the reasons stated below, we affirm in part and reverse in part.
First, appellant claims that the trial court erred in imposing court costs of $200 under section 27.3455, Florida Statutes (1985). Appellant had previously been adjudicated indigent for purposes of trial. Appellant’s offenses were committed on March 13, 1985. However, section 27.3455 became effective on July 1,1985. On appeal, appellant argues that because this statute imposes an additional burden upon him which did not exist before its enactment, retroactive application violates the ex post facto provisions of the United States and Florida Constitutions as applied to him. Appellant failed to raise this objection in the trial court; therefore, he has waived the right to assert his ex post facto argument on appeal. Our holding is without prejudice to the appellant to seek relief pursuant to Florida Rule of Criminal Procedure 3.850. Parker v. State, 500 So. 2d 721 (Fla. 2d DCA 1987); Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986). Accordingly, we affirm on this point. See, however, State v. Yost, 507 So. 2d 1099 (Fla.1987). Second, appellant correctly points out that the trial court did not afford him notice or a hearing before assessing costs under section 960.20, Florida Statutes (1985), as required by Jenkins v. State, 444 So. 2d 947 (Fla.1984). Accordingly, we strike these costs and remand to the trial court to afford appellant the procedural requirements of Jenkins.
Third, appellant correctly argues that since he was represented by the elected public defender’s office in a non-capital case, attorney’s fees should be assessed against him under section 27.56, Florida Statutes (1985), rather than under section 925.036, Florida Statutes (1985). Accordingly, on remand the trial court should correct the order to reflect that attorney’s fees should be assessed against appellant in accordance with section 27.56.
Fourth, appellant argues that the trial court erred in imposing restitution as a condition of his probation without regard to his ability to pay, as required by section 775.089(6), Florida Statutes (1985). However, appellant failed to object in the trial court to the imposition of restitution. This court has previously held that where an appellant fails to object to the trial court’s imposition of restitution, this point is not preserved for appeal. Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987). However, appellant correctly argues that the trial court erred in delegating the determination of the amount of restitution to appellant’s probation officer. Bostic. Accordingly, we remand for a judicial determination of the amount of restitution owed.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
DANAHY, C.J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
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Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)…quire appellant to make higher monthly payments. Appellant did not agree to delegate this authority to his probation officer. See Casto v. State, 615 So. 2d 792 (Fla.5th DCA 1993); Ashe v. State, 582 So. 2d 759 (Fla.1st DCA 1991); Williams v. State, 507 So. 2d 1171 (Fla.2d DCA 1987). Additionally, the trial court, in condition 16 of its probation order, required appellant to maintain full-time and part-time employment. We agree with appellant that such a condition was sufficiently egregious to be the equivale…
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Las Perry v. State, 513 So. 2d 254 (Fla. 2d DCA 1987)…elegated to a nonjudicial officer, a practice we have rejected. Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987). The function of determining the amount of restitution and requiring its payment rests solely with the trial court. Williams v. State, 507 So. 2d 1171 (Fla. 2d DCA 1987). Accordingly, we reverse the restitution order and remand with an instruction that the trial court compute the precise sum to be paid Bonita Beach Rental. CAMPBELL, A.C.J., and BOARDMAN, EDWARD F. (Ret.), J., concur.…
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Emmet Richard Gemme v. State, 508 So. 2d 533 (Fla. 2d DCA 1987)…roceedings within and without this state. Defendant next contends that the trial court erred in imposing restitution. However, defendant did not object to restitution and, therefore, failed to preserve that issue for appeal. See Williams v. State, 507 So. 2d 1171 (Fla. 2d DCA 1987); Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987); Hussey v. State, 504 So. 2d 796 (Fla. 2d DCA 1987); Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987). Defendant next co…
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)
- State v. Yost, 507 So. 2d 1099 (Fla. 1987)
- Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986)
- Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)
- Boston v. Antinori & Thury, P.A., 500 So. 2d 721 (Fla. 2d DCA 1987)