JOHN ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal held that while a trial court may impose a public defender's fee as a condition of probation without first determining the defendant's ability to pay, it must provide the defendant with notice and an opportunity to contest the amount of the fee at sentencing. The court reversed and remanded because the trial court failed to afford Anderson this required hearing.
A defendant is entitled to notice and a meaningful opportunity to contest the amount of a public defender's fee at sentencing, and execution of an insolvency affidavit at arraignment does not constitute a waiver of this right. However, a trial court is not required to determine a defendant's ability to pay before imposing the lien itself; ability to pay is only relevant at the enforcement stage.
[1] A defendant's execution of an affidavit of insolvency at arraignment does not waive the right to notice and an opportunity to contest the amount of a public defender's li…
[2] A trial court must provide a defendant with notice and an opportunity to be heard before imposing a public defender's fee as a condition of probation.
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Join FLexlaw to unlock all legal intelligence“a defendant's execution of an affidavit of insolvency at arraignment is not a waiver of notice and the opportunity to contest the amount of the lien imposed for his attorney's fee”
Establishes that the insolvency affidavit does not waive due process rights to notice and hearing
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Join FLexlaw to unlock all legal intelligenceAnderson was ordered to pay a public defender's fee as a condition of probation. At arraignment, Anderson executed an affidavit of insolvency. At sent…
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COBB, Judge.
The appellant, Anderson, contends that the trial court erred by imposing upon him a public defender’s fee as a condition of probation without notice and the opportunity to be heard, and without making any determination of his ability to pay.
Anderson is correct in regard to his first contention — a defendant’s execution of an affidavit of insolvency at arraignment is not a waiver of notice and the opportunity to contest the amount of the lien imposed for his attorney’s fee. See Bull v. State, 548 So. 2d 1103 (Fla.1989); Fla.R.Crim.P. 3.720(d)(1). In Bull, the Florida Supreme Court affirmed the trial court’s imposition of such a lien because, at sentencing, the court specifically gave the defendant thirty days in which to challenge the amount of the lien. Therefore, the failure of Bull to either object or request a hearing constituted a valid waiver. In the instant case, there was no such specific opportunity afforded by the trial court at sentencing.
Anderson’s second point — that it was incumbent upon the trial court to consider his ability to pay before imposition of a public defender’s lien — is clearly incorrect. This argument confuses the distinction between imposition of such a lien and its enforcement.1 It is only in the latter instance that due process requires a judicial determination of the defendant’s ability to pay in accordance with the principles enunciated in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). See also Jenkins v. State, 444 So. 2d 947 (Fla.1984). Moreover, the imposition of an attorney fee should not be confused with orders of restitution, which do require pri-or consideration of ability to pay. See Leyba v. State, 520 So. 2d 705 (Fla. 5th DCA 1988); § 775.089(6), Fla.Stat. (1987).
Accordingly, we reverse the imposition of the attorney fee below and remand for a noticed hearing thereon to afford the defendant the opportunity to contest the amount of that fee.
REVERSED.
PETERSON and GRIFFIN, JJ., concur. . There is dictum in our prior opinion of Single-tary v. State, 530 So. 2d 460 (Fla. 5th DCA 1988), which contributes to this confusion by erroneously citing to Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986), for the proposition that consideration of a defendant’s ability to pay should be heard prior to imposition (as opposed to enforcement) of a public defender's lien.
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McCOY v. State, 632 So. 2d 181 (Fla. 5th DCA 1994)…1992); Denmark v. State, 588 So. 2d 324 (Fla. 4th DCA 1991); Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990); Singletary v. State, 530 So. 2d 460 (Fla. 5th DCA 1988); Leyba v. State, 520 So. 2d 705 (Fla. 5th DCA 1988). See also Anderson v. State, 556 So. 2d 527 (Fla. 5th DCA 1990). Appellee additionally failed to provide any evidence of the victim’s damages at the hearing. See Green. Based on the foregoing appellant’s sentence is reversed and remanded to the trial [*184] court for resentencing with instru…
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Carroll v. State, 602 So. 2d 702 (Fla. 5th DCA 1992)…stricken and the matter remanded for the required notice and specific opportunity for the defendant to be heard before assessment. Pope v. State, 598 So. 2d 309 (Fla. 2d DCA 1992); Rice v. State, 576 So. 2d 434 (Fla. 2d DCA 1991); Anderson v. State, 556 So. 2d 527 (Fla. 5th DCA 1990). Second, there is a discrepancy between the oral pronouncement of restitution to the victim, Margaret Little, and the written order ($9.39 vs. $99.39), which requires clarification or correction. SENTENCE VACATED; REMANDED. W…
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Brinson v. State, 606 So. 2d 476 (Fla. 5th DCA 1992)…basis of sufficient evidence. However, the order of restitution cannot be sustained because the record fails to show that either Brinson or his attorney was given notice and an opportunity to be heard on the restitution order. See Anderson v. State, 556 So. 2d 527 (Fla. 5th DCA 1990); Fitzpatrick v. State, 553 So. 2d 396 (Fla. 5th DCA 1989); Singletary v. State, 530 So. 2d 460 (Fla. 5th DCA 1988); In re D.J.P., 503 So. 2d 986 (Fla. 5th DCA 1987). Although the order of restitution recites it was entered purs…
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)
- Fuller v. Oregon, 417 U.S. 40 (U.S. 1974)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986)
- State v. Leija, 520 So. 2d 705 (Fla. 5th DCA 1988)
- Singletary v. State, 530 So. 2d 460 (Fla. 5th DCA 1988)