MAURICE SMILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Maurice Smiley's conviction and sentence for sale and delivery of cocaine were affirmed, but the imposition of public defender fees and costs was reversed and remanded because the trial court failed to provide him with proper notice and an opportunity to be heard before assessing the fees, as required by Florida statute and case law.
The trial court erred in imposing public defender fees without prior notice to the defendant and without affording him an opportunity to object to the amount of the lien. Prior notice is indispensable to the imposition of attorney's fees under Section 27.56(1)(a), and the defendant must be given notice of his right to a hearing to contest the amount before such fees may be assessed.
[1] Prior notice is indispensable to the imposition of attorney's fees for the public defender.
[2] A trial court may assess attorney's fees and costs against a defendant who has received the assistance of the public defender's office.
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Join FLexlaw to unlock all legal intelligence“prior notice is indispensable to the imposition of attorney's (public defender) fees under section 27.56(l)(a).”
Establishes the core holding that notice is a required prerequisite for imposing public defender fees.
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Join FLexlaw to unlock all legal intelligenceSmiley was convicted by jury of sale and delivery of cocaine as a felony of the second degree and sentenced to fifteen years in the Department of Corr…
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PER CURIAM.
We affirm appellant’s conviction and sentence in all respects except for the imposition of public defender fees and costs, which we reverse and remand with direction to proceed in accordance herewith.
While State v. Beasley, 580 So. 2d 139 (Fla.1991), controls the imposition of certain statutorily mandated costs, “prior notice is indispensable to the imposition of attorney’s (public defender) fees under section 27.56(l)(a).” In re R.B., 582 So. 2d 163 (Fla. 4th DCA 1991). Pursuant to section 27.56(l)(a), Florida Statutes (1989), the trial court, having jurisdiction over any defendant who has been determined guilty and who has received the assistance of the public defender’s office, “may assess attorney’s fees and costs against the defendant.” The public defender shall move the court to assess attorney’s fees and costs at the sentencing hearing or at such stage in the proceedings as the court may deem appropriate. Section 27.56(l)(a), Fla.Stat. (1989). Section 27.56(7) specifically provides that the defendant be afforded the opportunity to object to the amount of the lien:
The court having jurisdiction of the defendant-recipient may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender ... at which time the defendant-recipient or parent, after adequate notice thereof, shall have the opportunity to be heard and offer objection to the determination, and to be represented by counsel, •with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.
Section 27.56(7), Fla.Stat. (1989) (emphasis added).
While the R.B. panel of this court relied on the above language to distinguish section 27.56 from sections 27.3455, 943.25, and 960.20, which were the subject of Beasley, another distinction between the imposition of costs under the aforementioned sections and the imposition of fees and costs under section 27.56 is the legislature’s use of the word “may” in the latter. Section 27.56 provides for the assessment of attorney’s fees and costs “as a matter of law,” Bull v. State, 548 So. 2d 1103, 1104 (Fla.1989); however, we hold the assessment is not mandatory. Consequently, the defendant is not on constructive notice that such a fee will be imposed.
In the instant case, the public defender did not move the trial court for the imposition of attorney’s fees. Rather, the trial court merely asked the public defender to provide the amount of the lien:
THE COURT: All right, Maurice Smiley, in this case Number 90-423, the jury having found you guilty of Count I, sale and delivery of cocaine, a felony of the second degree, I am going to adjudicate you guilty. I’m going to sentence you to fifteen years in the DOC as an habitual felony offender. You will be assessed two hundred and twenty five dollar court costs, public defender fees of—
PUBLIC DEFENDER: Two hundred and fifty dollars.
THE COURT: — two hundred and fifty dollars.
As in R.B., there was no prior notice, much less a motion by anyone, that would alert appellant to be prepared to address this issue. Furthermore, appellant was not given notice of his right to a hearing 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Townsend v. State, 604 So. 2d 885 (Fla. 2d DCA 1992)…irst, Townsend claims that in case no. 89-0494, the trial court erred in assessing $1,000 in public defender fees without prior notice and an opportunity to contest the fees. If Townsend’s claim is true, we agree this was error. See Smiley v. State, 590 So. 2d 1116 (Fla. 4th DCA 1991) and Buiey v. State, 583 So. 2d 384 (Fla. 1st DCA 1991). Because the trial court’s order of denial does not refute Townsend’s claim that the fees were improperly assessed, we reverse and remand on this point. On remand the trial c…
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Gant v. State, 640 So. 2d 1180 (Fla. 4th DCA 1994)…ate, 638 So. 2d 602 (Fla. 4th DCA 1994) (en banc). However, the defendant must be given prior notice of the intent to seek public defender fees and costs as well as notice of his or her right to contest the amount of the assessment. Smiley v. State, 590 So. 2d 1116, 1117 (Fla. 4th DCA 1991); § 27.56(7), Fla.Stat. (1993). In the instant case, the trial court sua sponte assessed a public defender fee without prior notice and without advising Defendant of his right to contest the assessment. Accordingly, we rever…
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Majors v. State, 645 So. 2d 1110 (Fla. 1st DCA 1994)…tice and an opportunity to be heard. Regardless of whether notice was provided by publication of the statutes, State v. Beasley, 580 So. 2d 139, 142 (Fla.1991), or whether the public defender was required to move for fees and costs, Smiley v. State, 590 So. 2d 1116, 1117 (Fla. 4th DCA 1991), the fact remains that no portion of the record was attached to the order refuting appellant’s claim that he was not provided with an opportunity to contest the amount. Buiey v. State, 583 So. 2d 384 (Fla. 1st DCA 1991) (er…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- In the Interest of R.B., 582 So. 2d 163 (Fla. 4th DCA 1991)
- Westley Hostzclaw v. State, 561 So. 2d 1323 (Fla. 4th DCA 1990)