DANIEL JOSIAH BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the enhancement of felony convictions was error, but the imposition of costs was proper as notice was given.
The defendant was convicted of aggravated assault with a deadly weapon and appealed the enhancement of his convictions and the imposition of court cos…
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COBB, Judge.
Daniel J. Bryant urges that the trial court erred in enhancing his convictions for aggravated assault with a deadly weapon (a firearm) from third degree to second degree felonies pursuant to section 775.-087(1), Florida Statutes (1987). The state concedes error based upon Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983), approved, 449 So. 2d 818 (Fla.1984) and other cases.
The appellant also asserts that court costs of $225.00 were imposed upon him without notice and an opportunity to be heard contrary to Harriel v. State, 520 So. 2d 271 (Fla.1988) and Mays v. State, 519 So. 2d 618 (Fla.1988). Irrespective of whether costs are assessed under sections 960.20, 943.25, 27.56, or 27.3455, Florida Statutes (1987), the court must provide adequate notice of such assessment to the defendant with a full opportunity to be heard and to object. Jenkins v. State, 444 So. 2d 947, 950 (Fla.1984). Not being afforded this procedural due process is fundamental error and, as a result, no contemporaneous objection is needed to preserve the issue for appellate review. Henriquez v. State, 545 So. 2d 1340 (Fla.1989). Additionally, a judicial finding of ability to pay must be made prior to “any enforcement of the collection of those costs” or before payment is enforced. Mays at 619; Jenkins at 950; Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).
The record reveals that Bryant was notified that costs would be imposed against him during the sentencing hearing. Bryant and his appointed counsel made no objections at the time even though they could have done so then or later. Accordingly, we affirm the imposition of the costs, reverse the enhancement of the third degree felony convictions, and remand for resentencing.
AFFIRMED in part, REVERSED in part, and REMANDED.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)…tion can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” Stephens v. State, 630 So. 2d 1090, 1091 (Fla.1994); see Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section 948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer’s…
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Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990)…of costs because the appellant was not given any notice that they would be assessed. Harriel v. State, 520 So. 2d 271 (Fla.1988); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984). As we stated in Bryant v. State, 546 So. 2d 762, 763 (Fla. 5th DCA 1989), irrespective of the statute under which costs are assessed, the trial court “must provide adequate notice of such assessment to the defendant with a full opportunity to be heard and to object” or there is fundamental error…
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Inclima v. State, 570 So. 2d 1034 (Fla. 5th DCA 1990)…Statutes (1989), and that the notice is sufficient to advise the defendant that court costs may be imposed, the defendant in this case never received an opportunity to object, since costs were never mentioned at sentencing. Compare Bryant v. State, 546 So. 2d 762 (Fla. 5th DCA 1989) (costs affirmed where defendant was notified that costs would be imposed during sentencing). Accordingly, the costs must be stricken, although upon remand after proper notice and an opportunity to be heard, the court may reimpose…
Previewing 3 of 6 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)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Fuller v. Oregon, 417 U.S. 40 (U.S. 1974)
- Harriel v. State, 520 So. 2d 271 (Fla. 1988)
- Henriquez v. State, 545 So. 2d 1340 (Fla. 1989)
- Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983)
- State v. Perez, 449 So. 2d 818 (Fla. 1984)