DAVID M. HARRIEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Harriel appealed his conviction for cocaine sale and possession, challenging both the conviction and the assessment of various court costs. The court affirmed the conviction and certain costs while reversing and remanding the assessment of other costs due to lack of proper notice and failure to determine the indigent defendant's ability to pay.
The trial court properly denied the motion for mistrial and properly allowed the jury to read the transcript during tape playback. The trial court improperly assessed costs under sections 960.20 and 943.25(4) without proper notice and without determining ability to pay. The ex post facto challenge to section 27.3455(1) costs was waived by failure to raise the issue at trial, and the imposition of those costs was affirmed.
[1] A trial court does not err in allowing a jury to read a transcript of a recorded drug transaction while the tape of that transaction is being played.
[2] Assessment of certain costs against an indigent defendant requires due process, including prior notice and an opportunity to object.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although a trial judge may tax these costs against an indigent defendant, it can only do so after due process requirements have been met.”
Establishes the fundamental requirement that due process protections apply to cost assessments against indigent defendants.
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Join FLexlaw to unlock all legal intelligenceDavid Harriel, an indigent defendant, was convicted of both sale and possession of cocaine. At trial, the jury was allowed to read a transcript of a r…
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WALDEN, Judge.
David Harriel, appellant, challenges his conviction for both the sale of cocaine and possession of-cocaine. Appellant, an indigent, also challenges the assessment of costs pursuant to section 960.20, Florida Statutes (1981) and section 943.25(4), Florida Statutes (1981), as well as the assessment of additional court costs pursuant to section 27.3455(1), Florida Statutes (1985).
Upon review, we find that the trial court properly denied the motion for mistrial pursuant to Meade v. State, 96 So. 2d 776 (Fla.1957), cert. denied, 355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279 (1958); Cooper v. State, 261 So. 2d 859 (Fla. 3d DCA 1972); State v. Murray, 443 So. 2d 955 (Fla.1984); and Kothman v. State, 442 So. 2d 357 (Fla. 1st DCA 1983).
We further find no error in allowing the jury to read a transcript of a recorded drug transaction while the tape of that transaction was being played. See Grimes v. State, 244 So. 2d 130 (Fla.1971); Golden v. State, 429 So. 2d 45 (Fla. 1st DCA), petition for rev. den., 431 So. 2d 988 (Fla.1983). Accordingly, we affirm the conviction.
We reverse and remand the cause with respect to the assessment of certain costs pursuant to Jenkins v. State, 444 So. 2d 947 (Fla.1984). Although a trial judge may tax these costs against an indigent defendant, it can only do so after due process requirements have been met. In the instant case, the appellant received no prior notice nor was he afforded a full opportunity to object to the assessment of costs provided by section 960.20, Florida Statutes (1981), and section 943.25(4), Florida Statutes (1981). Further, any enforcement of the collection of these costs must occur only after a judicial finding that an indigent defendant has the ability to pay. For these reasons, the assessment of costs was inappropriate and a new hearing upon proper notice is necessary to determine the indigent appellant’s ability to pay these costs. See Lawson v. State, 470 So. 2d 109 (Fla. 4th DCA 1985).
Finally, we affirm the imposition of additional costs against appellant pursuant to section 27.3455(1), Florida Statutes (1985). Appellant asserts that the application of this section to his case would constitute a violation of the ex post facto clause. However, appellant did not raise this issue in the trial court. Therefore, he has waived the right to raise this issue on appeal, because it does not involve the facial unconstitutionality of the statute. See Davis v. State, 495 So. 2d 928 (Fla. 4th DCA 1986).
Accordingly, we affirm appellant’s conviction and the imposition of additional costs pursuant to section 27.3455(1), Florida Statutes (1985). We reverse the court costs pursuant to section 960.20, Florida Statutes (1981), and section 943.25(4), Florida Statutes (1981), and remand for a proper hearing with notice and based thereon a determination of his ability to pay.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
DOWNEY and GUNTHER, JJ., concur.
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Harriel v. State, 520 So. 2d 271 (Fla. 1988)…PER CURIAM. We have for review Harriel v. State, 508 So. 2d 509 (Fla. 4th DCA 1987), because of express and direct conflict with Ramsey v. State, 507 So. 2d 742 (Fla. 2d DCA 1987), and Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986), approved, 509 So. 2d 926 (Fla.1987). We have jurisdiction pursuant to artic…
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Loren v. State, 518 So. 2d 342 (Fla. 1st DCA 1987)…sations between the defendant and another while the recording is being played. Golden v. State, 429 So. 2d 45 (Fla. 1st DCA 1983), pet. for rev. den., 431 So. 2d 988 (Fla.1983); Taylor v. State, 508 So. 2d 1265 (Fla. 1st DCA 1987); Harriel v. State, 508 So. 2d 509 (Fla. 4th DCA 1987). But see, Stanley v. State, 451 So. 2d 897 (Fla. 4th DCA 1984), urging caution by trial courts in the use of transcripts, especially where the contents of the tape recordings are in dispute. It is not contended here, nor could i…
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Doyle v. State, 513 So. 2d 188 (Fla. 4th DCA 1987)…vel. This court has held that an ex post facto challenge to the application of section 27.3455, Florida Statutes, is waived if not raised before thé trial court as it does not involve the facial unconstitutionality of the statute. Harriell v. State, 508 So. 2d 509 (Fla. 4th DCA 1987); Davis v. State, 495 So. 2d 928 (Fla. 4th DCA 1986). However, those holdings impliedly contemplate the trial court’s oral pronouncement of intention to impose community service, which pronouncement would occasion the opportunity…
Authorities Cited (12 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- Grimes v. State, 244 So. 2d 130 (Fla. 1971)
- Golden v. State, 429 So. 2d 45 (Fla. 1st DCA 1983)
- Kothman v. State, 442 So. 2d 357 (Fla. 1st DCA 1983)
- Davis v. State, 495 So. 2d 928 (Fla. 4th DCA 1986)
- La Marca v. New York, 355 U.S. 920 (U.S. 1958)
- Donohue v. Vill. of Fox Point, 355 U.S. 920 (U.S. 1958)
- Garcia v. State, 261 So. 2d 859 (Fla. 1st DCA 1972)
- Meade v. State, 96 So. 2d 776 (Fla. 1957)