WESTLEY HOSTZCLAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Westley Hostzclaw appealed his conviction where the trial court imposed public defender attorney's fees and costs without providing proper notice or making findings regarding his ability to pay. The Fourth District Court of Appeal reversed the fee assessment due to lack of notice and failure to comply with statutory requirements.
Yes. The trial court erred in imposing costs without notice to the defendant and without making specific findings as to the defendant's ability to pay. The lack of notice alone mandates reversal of the fee and cost assessment.
[1] A trial court must provide notice to a defendant before assessing public defender fees and costs.
[2] A trial court must make findings regarding a defendant's ability to pay before imposing public defender fees and costs.
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Join FLexlaw to unlock all legal intelligence“Our review of the record indicates that appellant did not receive notice of the assessment of his public defender attorney's fees and costs. Further, the trial court failed to make the required findings of appellant's ability to pay.”
Establishes the two primary errors: lack of notice and failure to make ability-to-pay findings
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Join FLexlaw to unlock all legal intelligenceHostzclaw, an indigent defendant, pleaded nolo contendere to burglary and petit theft charges on May 4, 1989. On July 7, 1989, the trial judge adjudic…
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POLEN, Judge.
Appellant, an indigent defendant, entered a plea of nolo contendere to the charges of burglary and petit theft on May 4, 1989. On July 7, 1989, the trial judge adjudicated appellant guilty and ordered him to pay court costs in the sum of $250.00 pursuant to section 27.3455(1), Florida Statutes (1988). The trial judge further ordered appellant to pay public defender attorney’s fees and costs totaling $633.40 pursuant to section 27.56(l)(a), Florida Statutes (1987).
The assistant public defender submitted an unsworn affidavit of his time and costs to the court prior to the sentencing hearing. The affidavit indicates that the assistant public defender informed appel lant of the costs. Yet, appellant's signature does not appear in the waiver of hearing or request for hearing section on the form. The affidavit does not state that this matter would be-called up at the sentencing hearing or that these costs would be assessed against appellant at that time.
Our review of the record indicates that appellant did not receive notice of the assessment of his public defender attorney’s fees and costs. Further, the trial court failed to make the required findings of appellant’s ability to pay.1 Bull v. State, 548 So. 2d 1103 (Fla.1989); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984).
Appellee concedes that the trial court erred in imposing costs without notice and without making specific findings as to appellant’s ability to pay. We agree that the lack of notice alone mandates reversal. However, appellee requests that this court certify a question to the supreme court so that it may consider the federal standard enounced in United States v. Cooper, 870 F. 2d 586 (11th Cir.1989); United Stated v. Rivera-Valdez, 839 F. 2d 8 (1st Cir.1988); and United States v. Pagan, 785 F. 2d 378 (2d Cir.1986), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986). These cases stand for the proposition that even an indigent defendant cannot implicate a constitutional defense against the imposition of costs and fees vis-a-vis his ability to pay. It is only at the time such costs and/or fees are attempted to be collected that constitutional protections may arise. Contra Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990). We have certified this question in Beasley v. State, No. 89-2188 (Fla. 4th DCA May 23, 1990).
Accordingly, we reverse the imposition of fees and costs against appellant and remand for further action consistent with this opinion.
ANSTEAD and GLICKSTEIN, JJ., concur. . Appellant does not challenge the assessment of his special public defender fees.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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In the Interest of R.B., 582 So. 2d 163 (Fla. 4th DCA 1991)…nd be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law. [e.s.] Neither of the foregoing provisions has any counterpart in sections 27.3455, 943.25 and 960.20. As we did in Hostzclaw v. State, 561 So. 2d 1323 (Fla. 4th DCA 1990), we find that prior notice is indispensable to the imposition of attorney’s (public defender) fees under section 27.56(l)(a). Moreover, there is nothing in the supreme court’s Beasley decision which does away with this requiremen…
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Smiley v. State, 590 So. 2d 1116 (Fla. 4th DCA 1991)…to contest the amount of the lien as mandated by Florida Rule of Criminal Procedure 3.720(d)(1). In sum, the trial court was required to afford appellant notice of the assessment of his public defender attorney’s fees and costs, Hostzclaw v. State, 561 So. 2d 1323 (Fla. 4th DCA 1990), yet failed to do so. GLICKSTEIN, C.J., and DOWNEY and GUNTHER, JJ., concur.…
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Jones v. State, 624 So. 2d 812 (Fla. 4th DCA 1993)…e of the errors we address does not require that appellant be present for resentencing. The assessment of a fee for the Public Defender is stricken for lack of proper notice. Smiley v. State, 590 So. 2d 1116 (Fla. 4th DCA1991); Hostzclaw v. State, 561 So. 2d 1323 (Fla. 4th DCA1990). The written sentence must be amended to comport with the oral sentence. E.g., Newberry v. State, 616 So. 2d 1093 (Fla. 4th DCA1993); McBee v. State, 581 So. 2d 1009 (Fla. 4th DCA1991); Tannihill v. State, 559 So. 2d 608 (Fla. 4…
Previewing 3 of 7 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)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Gill v. United States, 479 U.S. 1017 (U.S. 1986)
- Smith v. United States, 479 U.S. 1017 (U.S. 1986)
- United States v. Pagan, 785 F.2d 378 (2d Cir. 1986)
- United States v. Cooper, 870 F.2d 586 (11th Cir. 1989)
- Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990)
- United States v. José Rivera-Velez, 839 F.2d 8 (1st Cir. 1988)