JAMES EDWARD SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a written departure from sentencing guidelines must be issued contemporaneously with oral sentencing, and State Attorney's fees are not authorized costs.
Appellant was convicted of second-degree felony murder. The trial court orally announced a departure from sentencing guidelines, but the written order…
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PER CURIAM.
Finding no reversible error, we affirm appellant’s conviction for second degree felony murder. However, we find error in the trial court’s departure from the sentencing guidelines without contemporaneous issuance of written reasons therewith, and in the assessment of State Attorney’s fees as a cost of prosecution.
At the sentencing hearing held on May 13,1992, the trial court indicated that it was upwardly departing from the guidelines based upon appellant’s escalating pattern of violent criminal conduct. It was not until the following day, however, that the trial judge signed and filed a written departure order. Although the written order reflects the same justification as pronounced orally, we nevertheless must find it invalid since it was not issued contemporaneously with oral sentencing. State v. Lyles, 576 So. 2d 706 (Fla.1991); Wright v. State, 617 So. 2d 837 (Fla. 4th DCA 1993). Further, inasmuch as it is clear to us that the trial court intended to depart from the sentencing guidelines, we remand for the trial court to resentence appellant within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990); Kelly v. State, 616 So. 2d 100 (Fla. 1st DCA 1993).
Next, the trial court’s imposition of a $899.10 State Attorney’s fee as a cost of prosecution is not statutorily authorized. Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992), rev. denied, 618 So. 2d 211 (Fla.1993). Upon resentencing, the trial court shall omit this assessment against appellant.
The conviction is affirmed, and the case is remanded for resentencing.
SMITH, MICKLE and LAWRENCE, JJ., concur.
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Torey Bradshaw and Alford R. Martin v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994)…the common law. As a consequence, recovery and allowance of such costs rest entirely on statutory provisions and no right to or liability for costs exists in the absence of statutory authorization. Wood, 248 So. 2d at 177. See also Scott v. State, 629 So. 2d 1070 (Fla. 1st DCA 1994); Masters v. State, 358 So. 2d 1143 (Fla. 1st DCA 1978); Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994). Although statutorily mandated costs may be imposed without notice to a defendant, State v. Beasley, 580 So. 2d 139 (Fla…
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Elston Watson v. State, 662 So. 2d 969 (Fla. 1st DCA 1995)…scribed as “investigative and trial time.” This court has held, however, that the State may not recover attorney fees as part of these costs. Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992), rev. denied, 618 So. 2d 211 (Fla.1993); Scott v. State, 629 So. 2d 1070 (Fla. 1st DCA 1994). Since it is not clear how much of the $800 is attributable to the State’s attorney fees and how much is attributable to assessable investigative costs, we reverse and remand. See Hollingsworth v. State, 622 So. 2d 129 (Fla. 5th…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Lyles, 576 So. 2d 706 (Fla. 1991)
- Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992)
- Nisa Vichaikul v. S.C.A.C. Enters., Inc., 616 So. 2d 100 (Fla. 2d DCA 1993)
- Mac Ray Wright v. State, 617 So. 2d 837 (Fla. 4th DCA 1993)