RICHARD ALLEN SEWAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that certain costs and attorney fees were erroneously imposed due to lack of documentation, jurisdiction, and notice, but affirmed the judgment and sentence.
[1] A trial court errs in assessing costs pursuant to section 939.01, Florida Statutes (1991), when the record lacks documentation supporting the cost and the prosecution has…
[2] An order assessing attorney's fees and costs entered after the filing of a notice of appeal is void for lack of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceThe defendant's counsel filed an Anders brief, and the defendant did not file a separate brief. The appeal concerned the imposition of certain costs a…
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PARKER, Judge.
Counsel for Richard Allen Sewar has filed a brief in this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sewar has filed no separate brief. Of the possible issues raised, we affirm the judgment and sentence but strike certain costs which were erroneously imposed. A cost of twenty-five dollars was imposed pursuant to section 939.01, Florida Statutes (1991). That statute requires a request for costs and documentation from the investigative agency to be provided to the trial court. § 939.01(1), Fla.Stat. (1991). Because, here, there is no documentation supporting this cost and the prosecution waived its costs at the sentencing hearing, it was error to assess this cost.
Sewar also challenges the attorney’s fees and costs assessed pursuant to section 27.56(1), Florida Statutes (1991). There are two reasons to strike these fees and costs. First, the record reflects that the order assessing these amounts was entered after the notice of appeal was filed in this case. The trial court was therefore without jurisdiction to enter the order. See Gatlin v. State, 618 So. 2d 765 (Fla. 2d DCA 1993). Second, notice and opportunity to contest fees and costs assessed pursuant to section 27.56(1) is a prerequisite to imposition of these fees and costs. See Farmer v. State, 617 So. 2d 447 (Fla.1993). The record contains no notice to Sewar that these fees and costs would be assessed, and there is nothing in the record to suggest that Sewar had an opportunity to contest these amounts. Accordingly, we must also find that these fees and costs were improperly assessed.
We affirm the judgment and sentence. We remand this case to the trial court to strike the twenty-five dollars costs imposed pursuant to section 939.01 and the fees and costs assessed pursuant to section 27.56(1). On remand, the trial court may reimpose those fees and costs after prior notice and an opportunity to be heard on the assessment.
DANAHY, A.C.J., and ALTENBERND, J., concur.
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Woods v. State, 879 So. 2d 651 (Fla. 5th DCA 2004)…785 So. 2d 603 (Fla. 4th DCA 2001); Wyatt v. State, 652 So. 2d 453 (Fla. 4th DCA 1995). The Second District Court adopts the view that the trial court is divested of jurisdiction. See Kit v. State, 705 So. 2d 1011 (Fla. 2d DCA 1998); Sewar v. State, 640 So. 2d 1203 (Fla. 2d DCA 1994). We adopt the view espoused by the Second District Court as the better-reasoned approach and hold that the trial court loses jurisdiction to conduct a fee hearing and render an order making payment a condition of probation after t…
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Wyatt v. State, 652 So. 2d 453 (Fla. 4th DCA 1995)…ng of the notice of appeal divests the trial court of jurisdiction to assess fees and costs and that fees and costs may only be reassessed on remand if the trial court had reserved jurisdiction to do so at the sentencing hearing. See Sewar v. State, 640 So. 2d 1203 (Fla. 2d DCA 1994). Although the Sewar case relied upon Gatlin, the latter relied upon the fourth district's opinion in Gonzalez v. State, 384 So. 2d 57 (Fla. 4th DCA 1980). Gonzalez does stand for the general proposition that the filing of a notice…
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KIT v. State, 705 So. 2d 1011 (Fla. 2d DCA 1998)…ney’s fees and costs. A telephone hearing was held on Kit’s objection to the assessment of fees and costs due Mandell. Thereafter, the trial court signed an order denying Kit’s objection to the final judgment for fees and costs. In Sewar v. State, 640 So. 2d 1203, 1204 (Fla. 2d DCA 1994), this court concluded that the filing of a notice of appeal divests the trial court of jurisdiction to assess fees and costs and that these fees and costs cannot be reassessed unless the trial court reserved jurisdiction to…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gatlin v. State, 618 So. 2d 765 (Fla. 2d DCA 1993)
- Farmer v. State, 617 So. 2d 447 (Fla. 2d DCA 1993)