HERMAN FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herman Ford appeals his 1988 convictions for possession and purchase of cocaine, challenging both the validity of his dual convictions and his sentence conditions. The court affirmed the convictions but vacated the imposition of court costs without proper notice and an invalid community control condition restricting cohabitation.
The court affirmed the convictions without prejudice because the defendant failed to reserve the right to appeal his plea, but affirmed without prejudice to raise the issue by collateral review. The court vacated the court costs assessment for lack of proper notice and hearing. The court vacated the community control condition restricting cohabitation as not reasonably related to rehabilitation or the crimes of conviction.
[1] A defendant who pleads nolo contendere without an express reservation of the right to appeal forfeits the right to direct appeal and must seek review by collateral attack…
[2] Court costs cannot be assessed against a defendant without prior notice and a hearing to determine the ability to pay.
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Join FLexlaw to unlock all legal intelligence“a defendant who pleads nolo contendere without making an express reservation of the right to appeal shall have no right to direct appeal, but must obtain review by means of collateral attack”
Establishes that failure to reserve appellate rights after nolo contendere plea bars direct appeal on the merits
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Join FLexlaw to unlock all legal intelligenceHerman Ford was convicted in May 1988 of both possession of cocaine and purchase of cocaine based on the same quantity of cocaine. He pleaded nolo con…
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RYDER, Acting Chief Judge.
Herman Ford appeals his convictions and sentence for possession of cocaine and purchase of cocaine. We affirm in part, vacate in part, and remand.
Appellant argues that his convictions in May of 1988 for possession and purchase of cocaine were based upon the same quantity of cocaine and, therefore, are in violation of Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), approved by State v. Smith, 547 So. 2d 613 (Fla.1989), superceded by statute as stated in Garcia v. State, 552 So. 2d 1177 (Fla. 2d DCA 1989). However, we are unable to consider this argument because appellant did not reserve the right to appeal this issue when he pleaded nolo contendere to both charges. Under section 924.06(3), Florida Statutes (1987), a defendant who pleads nolo contendere without making an express reservation of the right to appeal shall have no right to direct appeal, but must obtain review by means of collateral attack. See also Wells v. State, 390 So. 2d 808 (Fla. 5th DCA 1980). We therefore affirm without prejudice to appellant to raise this issue by collateral review.
Appellant is correct that the trial court erred in imposing $240.00 in court costs without prior notice and without conducting a hearing. Court costs cannot be assessed against a defendant without first providing adequate notice to the defendant and then making a judicial determination that the defendant has the ability to pay. It is fundamental error for a court to impose costs without complying with these procedural due process requirements. Wood v. State, 544 So. 2d 1004 (Fla.1989). Accordingly, we vacate that portion of the judgment which imposes court costs and remand for further proceedings on this issue.
Lastly, we find merit m one of appellant’s challenges to certain community control conditions. Appellant argues that the community control condition which forbids him from living with a member of the opposite sex who is not a relative without written permission is invalid, and we agree. In Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984), this court struck a similar condition because it failed to be reasonably related to rehabilitation, had no relationship to the crime for which the defendant was convicted, was related to conduct which was not in itself criminal, and forbade conduct which was not reasonably related to future criminality. As was the appellant in Brodus, in this case appellant was convicted of drug crimes. The prohibition that he not live with a member of the opposite sex who is not a relative does not appear reasonably related to rehabilitation, has no relationship to his drug crimes, is related to conduct which is not in itself criminal and forbids conduct which is not reasonably related to future criminality. For those reasons, the condition is invalid. We therefore remand for this condition to be stricken from appellant’s community control conditions.
Affirmed in part, vacated in part, and remanded for proceedings consistent with this opinion.
LEHAN and PATTERSON, JJ., concur.
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Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002)…cluded from challenging her convictions based on a double jeopardy violation because she did not reserve the right to appeal. Watson v. State, 702 So. 2d 584 (Fla. 2d DCA 1997); Rodriguez v. State, 622 So. 2d 1084 (Fla. 4th DCA 1993); Ford v. State, 556 So. 2d 483 (Fla. 2d DCA 1990); Wells v. State, 390 So. 2d 808 (Fla. 5th DCA 1980). We therefore affirm her convictions. As to the second issue, a sentencing error that occurs after the effective date of the amendments to Florida Rule of Criminal Procedure 3.8…
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Taccariello v. State, 664 So. 2d 1118 (Fla. 4th DCA 1995)
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Watson v. State, 702 So. 2d 584 (Fla. 2d DCA 1997)…rt erred by accepting George B. Watson’s guilty plea because of a possible double jeopardy issue. Watson waived his right to direct appeal by failing to make an express reservation of the right to appeal the double jeopardy issue. See Ford v. State, 556 So. 2d 483, 484 (Fla. 2d DCA 1990). We note that Watson can raise this issue by collateral review. See id. Accordingly, we affirm without prejudice to Watson to raise the double jeopardy issue by collateral review. PARKER, C.J., and PATTERSON and BLUE, JJ…
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
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- Singleton v. State, 390 So. 2d 808 (Fla. 5th DCA 1980)
- Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984)
- Garcia v. State, 552 So. 2d 1177 (Fla. 2d DCA 1989)