ANDREW BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andrew Bryant appealed his conviction and sentence, arguing his counsel raised no meritorious issues under Anders v. California. The appellate court affirmed the convictions and sentences but remanded to strike improperly imposed court costs and vacate the restitution order to allow for proper procedures on remand.
The convictions and sentences were affirmed, but the court struck the $2 assessment and $200 in general court costs for lack of proper notice and consideration of defendant's financial resources, struck the $800 public defender's lien for lack of adequate factual or legal basis and failure to advise of a right to hearing, and vacated the restitution order for failure to provide proper notice and hearing regarding the victim's loss and defendant's ability to pay.
[1] A trial court must provide a defendant an opportunity to be heard and object to the imposition of public defender fees.
[2] A trial court must provide a defendant notice of the imposition of discretionary costs and make an oral pronouncement of such costs and their statutory basis.
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Join FLexlaw to unlock all legal intelligence“the trial court failed to provide notice and failed to consider defendant's financial resources and other factors in making the decision to assess these discretionary costs”
Establishes the standard for imposing discretionary cost assessments and what the trial court violated.
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Join FLexlaw to unlock all legal intelligenceBryant was convicted after trial. The trial court imposed a lump sum of $255 in court costs (including a $2 assessment under section 943.25(13) and $2…
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MICKLE, Judge.
In this matter presented to us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we see no error affecting the convictions and sentences and therefore affirm. We remand, however, to strike improperly imposed costs and to vacate the order of restitution without prejudice to the reimposition thereof upon compliance with the proper procedures as set forth below.
The trial court orally ordered the defendant to pay a lump sum of $255 in court costs. The written Charges/Costs/Fees form itemizes the costs imposed. We must strike the assessment of $2 imposed pursuant to section 943.25(13), Florida Statutes (1993), and the assessment of $200 in general court costs because the trial court failed to provide notice and failed to consider defendant’s financial resources and other factors in making the decision to assess these discretionary costs. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995); Majors v. State, 645 So. 2d 1110 (Fla. 1st DCA 1994); Drakes v. State, 656 So. 2d 569 (Fla. 2d DCA 1995).
Additionally, the $200 court costs assessment is fatal because no statutory authority is cited and because, if this amount represents costs of prosecution pursuant to section 939.01, Florida Statutes (1993), then the state has the burden of proving the amount of these costs. See Reyes; Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994).
The record herein fails to reflect compliance with these requirements. Our disposition herein is without prejudice to reimposition of these costs upon remand after following the procedures outlined in Reyes.
We also strike the oral imposition of a public defender’s lien in the amount of $800. The lien was imposed without adequate factual or legal basis shown in the record and the defendant was not advised of his right to a hearing to contest the amount thereof. We remand with directions to advise defendant of his right to a hearing and, if a hearing is requested, to set one pursuant to Florida Rule of Criminal Procedure 3.720(d)(1). See Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994); Wright v. State, 654 So. 2d 252 (Fla. 1st DCA 1995); Buiey v. State, .583 So. 2d 384 (Fla. 1st DCA 1991).
With regard to restitution, the prosecutor orally announced at sentencing a restitution amount of $120 plus $18.
The trial court then orally ordered restitution in the amount of $238, a sum $100 greater than the amount suggested by the prosecutor. No separate written restitution order appears in the record. Added, however, at the end of the written sentencing form is the language “def pay restitution of $238.00 to victim on ct. 4.” We believe the manner in which restitution was imposed herein deprived the defendant of any opportunity to be heard with regard to the amount of loss sustained by the victim as well as defendant’s ability to pay the assessed amount.
Accordingly, the restitution is vacated and remanded to the lower court for reimposition, if appropriate, upon proper notice, hearing and pronouncement in compliance with section 775.089, Florida Statutes (1993).
Judgments and sentences AFFIRMED; portions of costs STRICKEN; REMANDED for restitution hearing.
ERVIN and LAWRENCE, JJ., concur.
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Citator
Cited By (29 total)
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Jamarl Vaughn v. State, 65 So. 3d 138 (Fla. 1st DCA 2011)…R.Crim. P. Rule 3.720(d)(1). For this reason, the Public Defender fee must be stricken. On remand, the trial court is directed to advise Vaughn of his right to a hearing to contest the Public Defender fee. Fla. R.Crim. P. 3.720(d); Bryant v. State, 661 So. 2d 1315, 1316-17 (Fla. 1st DCA 1995). AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.…
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Dodson v. State, 710 So. 2d 159 (Fla. 1st DCA 1998)…defendant must be given an opportunity to object. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). In addition, a public defender’s fee cannot be imposed without notice and an opportunity to be heard to contest the amount. See Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995). The state, citing section 924.051(3), Florida Statutes (Supp.1996), argues that appellant faded to preserve the issue of the imposition of costs and fees. In Neal v. State, 688 So. 2d 392 (Fla. 1st DCA), rev. denied, 698 So. 2d…
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Patterson v. State, 686 So. 2d 758 (Fla. 1st DCA 1997)…ordingly, we affirm appellant’s conviction and sentence. However, we strike the public defender fee imposed, because appellant was afforded neither notice of intent to seek such a fee, nor an opportunity to contest its amount. E.g., Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995); L.A.D. v. State, 616 So. 2d 106 (Fla. 1st DCA), review denied, 624 So. 2d 268 (Fla.1993). On remand, such a fee may again be imposed, provided that appellant is afforded notice and an opportunity to contest its amount. AFFIRME…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)
- Brown v. State, 583 So. 2d 384 (Fla. 3d DCA 1991)
- Ezekiel Peterson v. State, 645 So. 2d 1028 (Fla. 4th DCA 1994)
- Mallory Wright v. State, 654 So. 2d 252 (Fla. 1st DCA 1995)
- Chesterfield Drakes v. State, 656 So. 2d 569 (Fla. 2d DCA 1995)
- Majors v. State, 645 So. 2d 1110 (Fla. 1st DCA 1994)