RAUL ZAPANTA RAFAEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raul Zapanta Rafael was convicted of escape and disorderly conduct and appealed on five grounds, including his absence during jury challenges, cross-examination limitations, sentencing issues, and improper cost assessments. The appellate court affirmed the convictions but reversed and remanded on sentencing and cost issues.
The court affirmed the convictions on the jury challenges issue and found no merit to issues two and four. However, the court reversed and remanded on issue three because the 216-day sentence for disorderly conduct exceeded the 60-day statutory maximum for a second-degree misdemeanor. The court also reversed and remanded on issue five to strike duplicative costs assessed per count rather than per case and to require statutory citation for remaining costs.
[1] A defendant's absence from a bench conference during jury challenges does not constitute reversible error if the case was tried before the release of Coney v. …
[2] A sentence exceeding the statutory maximum for a second-degree misdemeanor is improper, even if it does not extend actual incarceration.
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“although the sentence imposed of 216 days' time served on the disorderly conduct conviction does not extend appellant's actual incarceration, it is an improper sentence insofar as it exceeds the maximum statutory term of 60 days' incarceration for a second-degree misdemeanor”
Establishes the court's holding that a sentence exceeding statutory maximums is improper even if it does not extend actual time served.
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Join FLexlaw to unlock all legal intelligenceRafael was tried and found guilty of escape and disorderly conduct. During trial, he was absent from the bench during a bench conference in which jury…
The full statement of facts, procedural history, and disposition for this case are member content.
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MICKLE, Judge.
Raul Zapanta Rafael appeals from a judgment and sentence entered after being found guilty of escape and disorderly conduct. He raises five points on appeal: (1) whether his absence from the bench during the exercise of jury challenges constitutes reversible error; (2) whether the trial court erred in limiting the cross-examination of a prosecution witness; (3) whether the sentence imposed for disorderly conduct exceeds the maximum sentence provided by statute; (4) whether the trial court erred in imposing conditions of probation not orally pronounced at sentencing; and (5) whether the charges, costs and fees were improperly assessed on a per count, rather than on a per case, basis, and included costs for which no statutory authority was cited.
We affirm in part, and reverse and remand in part.
By his first issue, appellant asserts that he is entitled to a new trial because he was not physically present at a bench conference during which jury challenges were exercised. Appellant’s trial took place before release of the opinion in Coney v. State, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995). Accordingly, we conclude that Coney is inapplicable. Lett v. State, 668 So. 2d 1094 (Fla. 1st DCA 1996). Appellant has failed to demon strate that his rights were violated pursuant to the rule which preceded that announced in Coney. Francis v. State, 413 So. 2d 1175 (Fla.1982). We therefore affirm appellant’s convictions on this issue. However, as in Lett, we certify the following question of great public importance:
DOES THE DECISION IN CONEY V. STATE, 653 So. 2d 1009 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), APPLY TO “PIPELINE CASES,” THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR OTHERWISE NOT YET FINAL WHEN THE OPINION WAS RELEASED?
We find no merit as to issues two and four and affirm without further discussion. As to issue three, although the sentence imposed of 216 days’ time served on the disorderly conduct conviction does not extend appellant’s actual incarceration, it is an improper sentence insofar as it exceeds the maximum statutory term of 60 days’ incarceration for a second-degree misdemean-or offense. See sections 877.03, 775.082(4)(b), Florida Statutes (1993). We therefore remand for correction of the judgment and sentence to reflect a sentence imposed within the statutory maximum for this offense.
Finally, the record contains two written “Charges/Costs/Fees” documents assessing costs separately for each count. Costs levied under sections 960.20, 943.25, and 27.3455, and costs assessed for the Law Library and for Gulf Coast Criminal Justice Assessment, are to be imposed on a per case, rather than a per count, basis. See Hunter v. State, 651 So. 2d 1258 (Fla. 1st DCA 1995); Rocker v. State, 640 So. 2d 163 (Fla. 5th DCA 1994); Hollingsworth v. State, 632 So. 2d 176 (Fla. 5th DCA 1994).
Accordingly, we reverse and remand the sentence for Count II with directions to strike these duplicative costs imposed as a part of that sentence. Also, upon remand, the court shall cite the statutory authority relied upon as support for the assessment of the amounts imposed for Law Library and Gulf Coast Criminal Justice Assessment. See Nguyen v. State, 655 So. 2d 1249 (Fla. 1st DCA 1995).
In addition, the $25.00 assessed as “Additional Court Cost” in Count II must be stricken because no statutory authority was cited to support this cost. See Watson v. State, 667 So. 2d 955 (Fla. 1st DCA 1996).
On remand, the court may reimpose this cost if it cites the statutory authority for that assessment. See Stephens v. State, 667 So. 2d 312 (Fla. 1st DCA 1995); Bradshaw v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994).
In all other respects, the judgments and sentences are affirmed.
AFFIRMED IN PART; REVERSED and REMANDED with directions.
MINER and WEBSTER, JJ., concur.
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Webster v. State, 705 So. 2d 970 (Fla. 2d DCA 1998)…yes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995); see also Smith v. State, 686 So. 2d 8 (Fla. 2d DCA 1996). In addition, statutory costs must be assessed per case, not per count. See Mills v. State, 672 So. 2d 873 (Fla. 2d DCA 1996); Rafael v. State, 679 So. 2d 314 (Fla. 1st DCA 1996), approved, 688 So. 2d 335 (Fla.1997). Because the court failed to include the proper statutory authority for the assessment of costs in its written sentencing order, the $600 for costs must be stricken. Webster’s convictions are…
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Brenton McNeil v. State, 215 So. 3d 55 (Fla. 2017)…and consistent with Judge Sawaya’s dissent in the case below, I would conclude that the costs provided for in sections 938.08, 938.085, and 938.10 should be assessed per case. QUINCE, J., concurs. . See majority op. at 59 (citing Rafael v. State, 679 So. 2d 314, 315 (Fla. 1st DCA 1996); Hunter v. State, 651 So. 2d 1258, 1260 (Fla. 1st DCA 1995); Hollingsworth v. State, 632 So. 2d 176, 177 (Fla. 5th DCA 1994)); majority op. at 59-60 (citing Mills v. State, 672 So. 2d 873, 873-74 (Fla. 2d DCA 1996)); see als…1 / 2
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Stickles v. State, 44 So. 3d 653 (Fla. 1st DCA 2010)…ere was but one trial. The trial court reasoned that notwithstanding consolidation for trial, the two cases remained separate and costs could be assessed accordingly. Generally, costs may be imposed per case and not per count. See Rafael v. State, 679 So. 2d 314, 315 (Fla. 1st DCA 1996); Hunter v. State, 651 So. 2d 1258, 1260-61 (Fla. 1st DCA 1995); Hollingsworth v. State, 632 So. 2d 176, 177 (Fla. 5th DCA 1994). But here we have consolidated “cases.” The wording of rule 3.151(b) indicates that when separat…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Torey Bradshaw and Alford R. Martin v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994)
- Sang Van Nguyen v. State, 655 So. 2d 1249 (Fla. 1st DCA 1995)
- Alfredco Lett v. State, 668 So. 2d 1094 (Fla. 1st DCA 1996)
- Hunter v. State, 651 So. 2d 1258 (Fla. 1st DCA 1995)
- Hollingsworth v. State, 632 So. 2d 176 (Fla. 5th DCA 1994)
- Rocker v. State, 640 So. 2d 163 (Fla. 5th DCA 1994)
- Stephens v. State, 667 So. 2d 312 (Fla. 1st DCA 1995)
- Watson v. State, 667 So. 2d 955 (Fla. 1st DCA 1996)