CHARLES REGINALD GIBSON

v.

STATE OF FLORIDA

GERBER, J.

The defendant, convicted of burglary of an occupied dwelling, appeals from the circuit court’s imposition of the statutory maximum fifteen-year prison sentence after he violated probation a third time and the circuit court designated him as a dangerous violent felony offender of special concern. The defendant also appeals from the circuit court’s imposition of a $500 public defender fee. The defendant argues the circuit court erred in two respects: (1) fundamentally, by considering during sentencing a prior sexual battery charge against the defendant for which he had been acquitted; and (2) by imposing the $500 public defender fee, where the record supported only a $400 public defender fee.

On the defendant’s first argument, the record cannot reasonably be read to suggest that the circuit court considered the acquitted conduct in imposing the defendant’s prison sentence. Therefore, we affirm that sentence. On the defendant’s second argument, the state concedes the circuit court erred in imposing a $500 public defender fee. We agree with the state’s concession, and therefore reverse on that argument only. We address each argument in turn.

1. The record cannot reasonably be read to suggest that the circuit court considered the acquitted conduct in imposing the defendant’s prison sentence.

On the defendant’s first argument, we apply de novo review. See Garcia v. State, 279 So. 3d 148, 150 (Fla. 4th DCA 2019) (“A trial court’s consideration of an impermissible sentencing factor constitutes fundamental error in the sentencing process, which may be raised for the first time on direct appeal. Whether a trial court violates a defendant’s due process rights by considering impermissible factors in sentencing is a question of law subject to de novo review.”) (citations and internal quotation marks omitted).

“The State bears the burden to show from the record as a whole that the trial court did not consider impermissible factors in rendering its sentence.” Strong v. State, 254 So. 3d 428, 432 (Fla. 4th DCA 2018) (citation omitted). “We must examine the record to determine whether it may reasonably be read to suggest that a defendant’s sentence was the result, at least in part, of the consideration of impermissible factors.” Id. (citation and internal quotation marks omitted).

Here, although the state, at the “danger hearing,” mentioned the defendant had a prior sexual battery charge for which he had been acquitted, the state added: “Because case law is very clear, [the state] can’t reach out to anything that occurred either [in the prior] offense or before that to show that he is a danger to the community. It has to be something he did while he was on probation … otherwise it gets reversed on appeal.” (emphasis added). At the continued “danger hearing,” the state explicitly told the court: “In no way, shape or form [is] [the state] asking the court to consider charges for which the defendant was ultimately acquitted in making [its] determination at sentencing down the line.”

Further, the circuit court, in concluding the defendant was a danger to the community, made no comment or finding in its oral pronouncement or written order indicating it had relied on the acquitted conduct. Instead, the circuit court explained it had relied on the factors listed in section 948.06(8)(e), Florida Statutes (2020), and specifically found “the nature and circumstances of the [d]efendant’s third [VOP] [which included a new arrest for unlawful sexual activity with a minor,] as well as his present conduct and the weight of the evidence against the [d]efendant … demonstrate he is a clear and present danger to that victim specifically, and to the community at large given the evidence presented by the [s]tate ….”

Accordingly, the record cannot “reasonably be read to suggest” that the defendant’s sentence was the result, even in part, of the consideration of impermissible factors. Thus, we affirm the defendant’s fifteen-year prison sentence.

2. The record supports only a $400 public defender fee.

On the defendant’s second argument, we apply de novo review. See Brinson v. State, 302 So. 3d 916, 917 (Fla. 4th DCA 2020) (“This court reviews a motion to correct a sentencing error de novo because it presents a purely legal issue.”).

After the circuit court imposed the $500 public defender fee, the defendant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, arguing in part that the circuit court should reduce the public defender fees to $400. The defendant’s motion explained the $400 breakdown:

[T]he public defender fees assessable against [the defendant] [are:] $150.00 arising at his first probation modification, $100.00 for the second modification and $100.00 for community control revocation. This provides for a total public defender fee carried-over and currently imposed of $350.00. If the $50.00 public defender application fee, as requested by the Public Defender [for the third VOP], were to be included within the total, along with the minimum public defender fee of $100.00, the maximum, total public defender fees assessable against [the defendant] upon revocation of community control were $400.00; not $500.00. Prior public defender application fee debt against [the defendant], arising from the first and second probation violation proceedings, were paid in full, according to the Department of Corrections. There is no factual or legal basis to assess any public defender fee or public defender application fee from [the defendant’s] initial guilty plea … because, by all appearances, he was represented by retained counsel and [the circuit] [c]ourt failed to order any assessment for such fees.

The state filed a response asserting it “ha[d] no objection to reducing Public Defender fees to $400.” The circuit court granted some aspects of the defendant’s motion, but did not file an order ruling on the public defender fee issue within sixty days. Thus, the motion was deemed denied as to that issue. Fla. R. Crim. P. 3.800(b)(2)(B).

As stated above, the state concedes error on this argument, with which we agree. Section 938.29(1)(a), Florida Statutes (2020), provides, in pertinent part:

A defendant who is convicted of a criminal act or a violation of probation or community control and who has received the assistance of the public defender’s office … shall be liable for payment of the assessed [$50] application fee under s. 27.52 and attorney’s fees and costs. Attorney’s fees and costs shall be set in all cases at no less than … $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control. The court may set a higher amount upon a showing of sufficient proof of higher fees or costs incurred.

§ 938.29(1)(a), Fla. Stat. (2020).

Here, the defendant’s rule 3.800(b)(2) motion’s breakdown of the alleged $400 fee may be summarized as follows:

• $150 for the first VOP; • $100 for the second VOP; • $100 for the third VOP; and • $50 for the third VOP application fee.

Normally, we would reverse the imposition of the $500 public defender fee and remand to the circuit court to either impose the $400 statutory minimum or hold an evidentiary hearing for a showing of sufficient proof of higher fees or costs incurred. However, as indicated above, the state already has taken the position that it does not object to simply reducing the fee to the $400 statutory minimum. For this reason, an evidentiary hearing is not necessary. Accordingly, we reverse the $500 public defender fee, and remand for the circuit court to enter a $400 public defender fee. The defendant need not be present for the circuit court’s ministerial correction to the public defender fee.

Affirmed in part, reversed and remanded in part with directions.

LEVINE and ARTAU, JJ., concur.