CLARENCE WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson appealed his sentence challenging the imposition of a restitution lien and certain court costs and fees. The court affirmed the restitution lien but struck two discretionary costs, and remanded regarding the public defender lien to ensure Wilson received proper notice and an opportunity to be heard on the amount.
The court affirmed the restitution lien finding the defendant waived the constitutionality challenge by failing to raise it at trial; struck the two discretionary costs as violations of Reyes procedures; upheld the public defender lien on the merits but remanded for the trial court to provide notice and a hearing opportunity as required by rule 3.720(d)(1).
[1] A defendant waives appellate review of a statute's constitutionality if the issue is not presented to the trial court.
[2] A handwritten note from a court clerk does not constitute a written order imposing a restitution lien.
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Join FLexlaw to unlock all legal intelligence“Although the defendant objected to the imposition of the restitution lien, he did not present argument regarding the constitutionality of the act to the trial court.”
Establishes that the defendant waived the constitutional challenge to the restitution lien by failing to raise it at trial.
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Join FLexlaw to unlock all legal intelligenceWilson was convicted in a post-July 1, 1994 case and sentenced to include a $5,000 restitution lien in favor of Publix, a $2 cost under section 943.25…
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FULMER, Judge.
The defendant challenges the imposition of a restitution lien as part of his sentence. He asserts that the Florida Civil Restitution Lien and Crime Victims’ Remedy Act of 1994, sections 960.29 through 960.297, Florida Statutes (Supp.1994), is unconstitutional. We decline to address this issue because the defendant waived appellate review. See Nevels v. State, 20 Fla.L.Weekly D2748, — So. 2d - (Fla. 2d DCA Dec. 13, 1995). Although the defendant objected to the imposition of the restitution lien, he did not present argument regarding the constitutionality of the act to the trial court. The transcript reveals:
[DEFENSE COUNSEL]: Yes, Your Hon-or. And one other thing that I noticed. This is a post July 1st, 1994 case. And so the restitution lien would be in effect, which in this case would be $5,000....
THE COURT: Right.
[DEFENSE COUNSEL]: We would object, Your Honor. We will file an appeal.
THE COURT: Okay. But do you and— Mr. Wilson, let me tell you what I didn’t talk to you about is. [sic] A statutory restitution lien of $5,000. In other words, I will be entering a civil money judgment against you and in favor of Publix in the amount of $5,000. The Public Defender objects to that. And he’s going to take an appeal on that issue. He’s already taken an appeal on that issue.
Furthermore, we note that the record does not contain an order imposing the restitution lien. The order of charges and costs provides that restitution was imposed “in accordance with attached order.” The order referred to is not in the record. The record was supplemented with the court clerk’s handwritten notes reflecting that a restitution lien for $5,000 was imposed. These notes do not constitute a written order. Nevertheless, as we previously stated, even if the judgment included the restitution lien, the defendant waived the constitutionality ground upon which he seeks to have the lien set aside.
The defendant also challenges the imposition of two discretionary costs in violation of the procedures outlined in Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995) (en banc). We agree and strike the $2 cost imposed pursu ant to section 943.25(13), Florida Statutes (1993), and the cost/fine for $33.
The trial court also assessed a public defender lien pursuant to section 27.56, Florida Statutes (1993). The defendant asserts that the assessment should be stricken because the trial court failed to determine his ability to pay. We disagree. In Bull v. State, 548 So. 2d 1103, 1105 (Fla.1989), the supreme court held that the defendant’s ability to pay is not an issue when the lien is imposed. See Mounts v. State, 638 So. 2d 602 (Fla. 4th DCA 1994). However, we remand on the issue of the public defender lien because the trial court did not advise the defendant of his right to a hearing to contest the amount of the lien, pursuant to Florida Rule of Criminal Procedure 3.720(d)(1). See Trice v. State, 655 So. 2d 1270 (Fla. 2d DCA 1995); Fulmore v. State, 634 So. 2d 829 (Fla. 5th DCA 1994). We observe that the defendant’s failure to object to the imposition of the public defender lien does not constitute a valid waiver of the due process requirements of rule 3.720(d)(1). See Norris v. State, 659 So. 2d 1352, 1354-1355 (Fla. 5th DCA 1995). On remand, the defendant has thirty days from the date of the mandate to file a written objection to the amount assessed. If an objection is filed, the trial court shall strike the assessment and shall not impose a new assessment without notice and hearing, pursuant to rule 3.720(d)(1). See Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992).
Accordingly, we strike certain court costs and remand for proceedings in accordance with our opinion. Otherwise, we affirm the sentence.
THREADGILL, .C.J., and FRANK, J., concur.
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Citator
Cited By (11 total)
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Garrison v. State, 685 So. 2d 53 (Fla. 2d DCA 1996)…iled, the trial court shall strike the assessment and shall not impose a new assessment without notice and hearing, pursuant to Florida Rule of Criminal Procedure 3.720(d)(1). See Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992); Wilson v. State, 675 So. 2d 613 (Fla. 2d DCA 1996). Similarly, the $2.00 cost imposed pursuant to section 943.25(13), Florida Statutes (1995), is a discretionary cost and must be pi’onounced at sentencing. Reyes, 655 So. 2d at 117. Accordingly, we strike the $2.00 cost. Finally,…
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Botero v. State, 681 So. 2d 813 (Fla. 2d DCA 1996)…t evidence. We find this issue is without merit. We do agree with the appellant, however, that the trial court erred in imposing a public defender hen without advising him of his right to a hearing to contest the amount of the lien. Wilson v. State, 675 So. 2d 613 (Fla. 2d DCA 1996). Accordingly, we affirm the judgment and sentence except that on remand the appellant shah have thirty days from the date of the mandate to file a written objection to the amount assessed. If an objection is filed, the trial cou…
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McMILLAN v. State, 8 So. 3d 1237 (Fla. 2d DCA 2009)…993).3 The court reasoned that the rule and statute were not subject to implied waiver and that although the defendant indicated that he did not object to the lien, he did not specifically waive his right to a hearing. Id.; see also Wilson v. State, 675 So. 2d 613, 615 (Fla. 2d DCA 1996) (concluding that the defendant’s failure to object to the imposition of a public defender lien did not constitute a valid waiver of the due process requirements of rule 3.720(d)(1)). Here, the trial court did not advise McMi…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992)
- Trice v. State, 655 So. 2d 1270 (Fla. 2d DCA 1995)
- Norris v. State, 659 So. 2d 1352 (Fla. 5th DCA 1995)
- Mounts v. State, 638 So. 2d 602 (Fla. 4th DCA 1994)
- Grabowski v. State, 634 So. 2d 829 (Fla. 4th DCA 1994)
- Fulmore v. State, 634 So. 2d 829 (Fla. 5th DCA 1994)