TRACEY GIPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tracey Gipson appealed his conviction and sentence for possession of cocaine. The court affirmed the conviction but modified the sentence by striking certain costs and probation conditions that lacked proper statutory authority or procedural safeguards.
The conviction was affirmed. However, the court costs and investigative costs were struck for lack of statutory authority; the attorney's fees assessment was conditionally stricken pending Gipson's opportunity to object; special condition 7 was affirmed as having sufficient notice through the standard probation form; special condition 8 was modified to include alternative language regarding seeking employment; and special condition 12 was struck for lack of oral pronouncement.
[1] Costs assessed without reference to statutory authority are subject to being stricken.
[2] A defendant must be informed of the right to contest the amount of attorney's fees awarded.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Both costs were assessed without reference to their statutory authority. Therefore, we strike those costs.”
Establishes that costs must have clear statutory authorization to be imposed.
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Join FLexlaw to unlock all legal intelligenceGipson was convicted of possession of cocaine and sentenced to pay $255 in court costs, $100 in investigative costs, and $1,000 in attorney's fees. He…
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PATTERSON, Acting Chief Judge.
Tracey Gipson challenges his judgment and sentence for possession of cocaine. We find no error as to Gipson’s conviction and therefore affirm. However, as Gipson argues, the trial court erred in imposing certain costs and probation conditions.
Gipson was ordered to pay $255 in court costs and $100 in investigative costs. Both costs were assessed without reference to their statutory authority. Therefore, we strike those costs. The state may seek to reimpose the costs upon remand. Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994).
A defendant must be informed of his right to contest the amount of attorney’s fees awarded to a public defender or court-appointed attorney. Drinnon v. State, 598 So. 2d 229 (Fla. 2d DCA 1992). Because Gip-son was ordered to pay $1,000 in attorney’s fees without notice or an opportunity to object, he may file an objection in the trial court to the amount assessed within thirty days of the mandate. If he files an objection, the assessment will be stricken. A new assessment may then be imposed if Gipson is given notice and a hearing. Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992); see Williams v. State, 655 So. 2d 1205 (Fla. 2d DCA 1995).
Gipson challenges special condition of probation 7, regarding the use of intoxicants to excess, on the ground that it was not orally pronounced at sentencing. We affirm the imposition of condition 7 because Gipson had sufficient notice. See State v. Hart, 668 So. 2d 589 (Fla.1996) (the supreme court’s promulgation of the “order of probation” form in Florida Rule of Criminal Procedure 3.986(e) constitutes sufficient notice to probationers of conditions 1-11, such that oral pronouncement is unnecessary).
Special condition 8 requiring Gip-son to work diligently at a lawful occupation, must be modified to require him to work diligently at a lawful occupation or actively seek employment, Godley v. State, 659 So. 2d 447 (Fla. 2d DCA 1995), or to require Gipson to “work faithfully at suitable employment to the best of his ability.” Martin v. State, 659 So. 2d 479, 480 (Fla. 2d DCA 1995). Finally, we strike special condition 12 regarding payment for drug testing because it was not orally pronounced at sentencing. Pounds v. State, 661 So. 2d 312 (Fla. 2d DCA 1995).
Affirmed in part; probation conditions modified; and costs stricken.
ALTENBERND and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boyd v. State, 688 So. 2d 959 (Fla. 2d DCA 1997)…it is a special condition that was not orally announced at sentencing. Reed v. State, 652 So. 2d 912 (Fla. 2d DCA 1996). We modify Condition 6 requiring defendant to work at suitable employment to state “to the best of his ability.” Gipson v. State, 670 So. 2d 1097 (Fla. 2d DCA 1996). We strike the portions of Conditions 8, 20, and 24 requiring defendant to pay for drug and alcohol testing, evaluation, and treatment because they are special conditions that were not orally announced at sentencing. Luby v. State…
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)
- Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992)
- Drinnon v. State, 598 So. 2d 229 (Fla. 2d DCA 1992)
- Hi-Tech Mktg. Grp., Inc. v. Thiem, 659 So. 2d 479 (Fla. 4th DCA 1995)
- Godley v. State, 659 So. 2d 447 (Fla. 2d DCA 1995)
- Williams v. State, 655 So. 2d 1205 (Fla. 2d DCA 1995)
- Pounds v. State, 661 So. 2d 312 (Fla. 2d DCA 1995)