JAMES HENRY KIRBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the convictions but remanded for resentencing and struck certain costs that were not orally pronounced or properly documented.
Appellant was convicted of possession of cocaine and paraphernalia. The written sentencing order did not conform to the oral pronouncement, and certai…
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WHATLEY, Judge.
James Henry Kirby appeals his convictions and sentences for possession of cocaine and possession of paraphernalia. We affirm his convictions without discussion; however, we remand for resentencing and strike certain costs.
Kirby argues, and the state agrees, that Kirby’s sentence must be vacated and the cause remanded for the trial court to conform the written sentencing order to its oral pronouncement. See Nisbett v. State, 660 So. 2d 813 (Fla. 2d DCA 1995).
Further, we strike $2 in court costs imposed pursuant to section 943.25(13), Florida Statutes (1993), because the cost is discretionary, and it was not orally announced at sentencing. We also strike the “cost/fine” of $33 that references no statutory authority. Finally, we strike the $100 assessment for the F.D.L.E. lab fee, because at the sentencing there was no request for such cost by the agency nor was there documentation supporting the cost. On remand, the state may seek to reimpose appropriate costs in accordance with Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995).
Accordingly, we affirm the convictions, but strike certain costs and remand the case for the trial court to conform the written sentencing order to the orally pronounced sentences.
RYDER, A.C.J., and LAZZARA, J., concur.
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Citator
Authorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Elston Ashton Nisbett v. State, 660 So. 2d 813 (Fla. 2d DCA 1995)