RONALD DENMAN
v.
STATE OF FLORIDA
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The appellate court affirmed the defendant's convictions and sentences for burglary and theft but reversed the imposition of a public defender fee and the habitual felony offender designation. The court found these were improperly imposed or not orally pronounced. The court also vacated an amendment to the sentence made after the appeal was filed.
The court held that the public defender fee and the HFO designation were improperly imposed. The court also held that the trial court lacked jurisdiction to amend the sentence after the notice of appeal was filed.
[1] A trial court must provide a defendant with adequate notice and an opportunity to be heard before imposing a public defender fee in excess of the statutory minimum, and m…
[2] When a trial court's written sentence includes a designation or condition that was not orally pronounced at sentencing, the written sentence must be corrected to conform…
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Join FLexlaw to unlock all legal intelligence“We affirm Denman's convictions and consecutive five-year sentences but reverse the imposition of a $400 public defender fee and the habitual felony offender (HFO) designation that was not orally pronounced at sentencing.”
States the overall outcome of the appeal regarding convictions, sentences, and specific challenged aspects.
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Join FLexlaw to unlock all legal intelligenceRonald Denman was convicted of burglary of a conveyance and petit theft, third or subsequent offense. The trial court imposed a $400 public defender f…
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SLEET, Judge. Ronald Denman challenges his judgment and sentences for burglary of a conveyance and petit theft, third or subsequent
offense.1 See § 938.29(5), Fla. Stat. (2019) ("The court having jurisdiction of the defendant . . . shall . . . determine the value of the services of the public defender . . . at which time the defendant . . . , after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination . . . ."); State v. J.A.R., 318 So. 3d 1256, 1258-59 (Fla. 2021) ("[I]f the court exercises its discretion under the statute to impose a fee amount higher than the [$100] statutory minimum [for felonies], there must be 'sufficient proof of higher fees or costs incurred' . . . [and] it must notify the defendant of the fee as well as the right to contest it." (quoting § 938.29(1)(a))). We agree, reverse the imposition of this fee, and remand for "the trial court to either1 This court has sua sponte consolidated these appeals for all purposes.
reduce the amount to the statutorily required $100 or hold a hearing with proper notice to obtain evidence in support of a lien in an amount greater than the statutory minimum." See Pierre v. State, 264 So. 3d 206, 207 (Fla. 4th DCA 2019). Denman also argues on appeal that his written sentence does not comport with the trial court's oral pronouncement at sentencing. He maintains that while the court determined that he did qualify as a an HFO, it affirmatively stated that it would not impose the designation. Our review of the sentencing transcript indicates that Denman is correct. As such, on remand, the trial court shall also strike the HFO designation from the sentence so that the written sentence comports with the court's oral pronouncement. See Cuevas v. State, 135 So. 3d 449, 449 (Fla. 2d DCA 2014) ("[A] trial court's oral pronouncement of sentence controls over the written document." (citing Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003))). Finally, after Denman filed his notice of appeal in case number 2D19-1687, the trial court sua sponte amended Denman's sentence, correcting a scrivener's error that indicated his sentences were to be served concurrently rather than consecutively as orally
pronounced by the court. However, because Denman had already filed his notice of appeal, the trial court lacked jurisdiction to amend his sentence. See Caruso v. State, 264 So. 3d 361, 362 (Fla. 2d DCA 2019) ("The trial court . . . lacked jurisdiction to amend the judgment and sentence while it was on appeal to this court."). Accordingly, on remand, the amended sentence entered without jurisdiction must be vacated, see id., but with its jurisdiction restored, the trial court must then correct Denman's sentence to reflect its oral sentencing pronouncement that the terms be served consecutively, see Cuevas, 135 So. 3d at 449. Affirmed in part, reversed in part, and remanded with instructions. NORTHCUTT and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication.
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Citator
Authorities Cited
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- Montanez-Hernandez v. State, 318 So. 3d 1256 (Fla. 2d DCA 2021)
- Caruso v. State, 264 So. 3d 361 (Fla. 2d DCA 2019)
- Eryc Cuevas v. State, 135 So. 3d 449 (Fla. 2d DCA 2014)
- Fritz Gerald Pierre v. State, 264 So. 3d 206 (Fla. 4th DCA 2019)