DONALD HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Holmes appealed his aggravated battery conviction and the probation conditions imposed, including costs and fees. The court affirmed the prosecution costs and public defender fees but vacated an unorally-pronounced sobriety condition and reversed the imposition of county costs lacking statutory authority.
The court affirmed the prosecution costs and public defender fees because Holmes failed to object contemporaneously, vacated the intoxicant prohibition because it was not orally pronounced, and reversed the county costs because the trial court lacked statutory authority to impose them.
[1] A defendant must make a contemporaneous objection to the imposition of costs or fees by the trial court to preserve the issue for appeal, unless the error is fundamental…
[2] A court lacks the statutory authority to impose costs in a criminal case unless specifically authorized by statute.
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Join FLexlaw to unlock all legal intelligence“A defendant, represented by counsel, may not sit idly by in open court while fees or costs are improperly assessed by the trial judge, fail to raise any objection whatsoever to the imposition of those improper costs and then be heard to argue on appeal that the trial court committed reversible error in imposing those costs.”
Establishes the contemporaneous objection requirement for sentencing errors involving costs and fees
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Join FLexlaw to unlock all legal intelligenceHolmes was convicted of aggravated battery and sentenced to 40.7 months incarceration followed by three years probation. The trial court imposed speci…
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STEVENSON, Judge.
Appellant, Donald Holmes, was convicted of aggravated battery and sentenced to 40.7 months incarceration, followed by three years probation. As special conditions of probation, Holmes was ordered to pay the costs of prosecution in the amount of $200, a public defender fee of $325, and $154 to the Indian River County Board of County Commissioners. The trial court also imposed a condition of probation which prohibited appellant from using intoxicants to excess. The state concedes that the condition of probation prohibiting appellant from using intoxicants to excess was not orally pronounced at trial and must be vacated. See Jaworski v. State, 650 So. 2d 172 (Fla. 4th DCA 1995). Because there was no objection below, we affirm the imposition of the prosecution costs and public defender fees. Despite the lack of an objection, we reverse the costs payable to Indian River County because of the trial court’s lack of statutory authority to impose them.
Appellant raises various challenges to the trial court’s imposition of prosecution costs and public defender fees, including lack of notice and lack of proof. While some of appellant’s arguments seemingly have merit, we do not consider them on appeal for the very simple reason that appellant failed to object when those costs were orally pronounced in open court by the trial judge. A defendant, represented by counsel, may not sit idly by in open court while fees or costs are improperly assessed by the trial judge, fail to raise any objection whatsoever to the imposition of those improper costs and then be heard to argue on appeal that the trial court committed reversible error in imposing those costs. See State v. Whitfield, 487 So. 2d 1045, 1046 (Fla.1986) (“Sentencing errors which do not produce an illegal sentence ... require a contemporaneous objection to be preserved for appeal.”).
The contemporaneous objection rule applies to conditions of probation unless the conditions are so egregious as to be the equivalent of fundamental error or are illegal. Larson v. State, 572 So. 2d 1368, 1370-71 (Fla.1991); Devine v. State, 636 So. 2d 179 (Fla. 5th DCA 1994); Watson v. State, 641 So. 2d 432 (Fla. 5th DCA 1994); Sweet v. State, 644 So. 2d 176 (Fla. 5th DCA 1994). The prosecution costs and public defender fees imposed as conditions of probation in this case are neither illegal nor so egregious as to amount to fundamental error, and are therefore, affirmed.
We strike the imposition of $154 in costs to the Board of County Commissioners of Indian River County because those costs were assessed without any citation to statutory authority in support of their assessment and the state has brought no such authority to the court’s attention on appeal. “It is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute.” Williams v. State, 596 So. 2d 758 (Fla. 2d DCA 1992). Thus, the imposition of those costs are, in a sense, illegal.
AFFIRMED IN PART; REVERSED IN PART.
POLEN, J., and SCHAPIRO, SHELDON, M., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Norman v. State, 676 So. 2d 7 (Fla. 4th DCA 1996)…ion of all costs, failed to object to the amount and failed to present evidence of his inability to pay. By not objecting to the imposition of the cost of prosecution, defendant did not adequately preserve this issue for appeal. See Holmes v. State, 658 So. 2d 1185 (Fla. 4th DCA 1994); Mills v. State, 642 So. 2d 145 (Fla. 4th DCA 1994); Thomas v. State, 633 So. 2d 1122 (Fla. 5th DCA 1994). In Holmes we declined to consider the defendant’s various challenges to the trial court’s imposition of prosecution costs…
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Gibbs v. State, 693 So. 2d 65 (Fla. 4th DCA 1997)…While appellant objected in the trial court to the imposition of the fee because of her inability to pay, on appeal her argument is that the fee is speculative, a point which was not raised below and therefore was not preserved. See Holmes v. State, 658 So. 2d 1185 (Fla. 4th DCA 1995). The state concedes that the written order of probation must be corrected to reflect that appellant was sentenced to two years of probation, in accordance with the trial court’s oral pronouncement. See Avery v. State, 543 So. 2…
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Chapman v. State, 974 So. 2d 625 (Fla. 4th DCA 2008)…repayment, as there is upon a criminal conviction. See § 938.29, Fla. Stat. In the criminal law, “[i]t is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute.” Holmes v. State, 658 So. 2d 1185, 1186 (Fla. 4th DCA 1995) (quoting Williams v. State, 596 So. 2d 758, 758 (Fla. 2d DCA 1992)). While Jimmy Ryce proceedings are civil, the constitutional requirement of counsel is imposed because involuntary commitment triggers due process protectio…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Williams v. State, 596 So. 2d 758 (Fla. 2d DCA 1992)
- Kevel Watson v. State, 641 So. 2d 432 (Fla. 5th DCA 1994)
- F.B. v. State, 644 So. 2d 176 (Fla. 3d DCA 1994)
- Cangusso v. State, 650 So. 2d 172 (Fla. 4th DCA 1995)
- Devine v. State, 636 So. 2d 179 (Fla. 5th DCA 1994)