LAWRENCE D. BASHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawrence Basham appealed his DUI conviction and sentence, challenging his conviction and several sentencing conditions. The court affirmed his conviction but partially reversed his sentence, striking certain probation conditions and an attorney's fee assessment that were not properly imposed.
The conviction is affirmed. However, certain probation conditions (Condition 10 regarding restitution and the second sentence of Condition 12 regarding test payment responsibility) are stricken because they were not orally pronounced as required. The $255 court costs are stricken for lack of statutory citation but may be reimposed. The $1,000 attorney's fee is reversed because the trial court failed to advise the appellant of the statutory authority and his right to contest the amount.
[1] A condition of probation that requires payment of restitution, costs, and/or fees, plus a processing fee, in equal monthly installments must be orally pronounced if it is…
[2] A special condition of probation requiring submission to drug or alcohol testing, which includes a provision for the defendant to pay for such tests unless waived, must b…
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Join FLexlaw to unlock all legal intelligence“As worded, this condition is not listed in the form order of probation under Florida Rule of Criminal Procedure 3.986; nor is it a statutorily authorized condition. Therefore, it was required to be orally pronounced. Since it was not, we strike Condition (10).”
Establishes the requirement that special probation conditions not in the standard form must be orally pronounced
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Join FLexlaw to unlock all legal intelligenceBasham was found guilty by jury of driving under the influence. The trial court sentenced him to sixteen months in prison with credit for time served,…
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DANAHY, Acting Chief Judge.
A jury found the appellant guilty of driving under the influence. The trial court sentenced the appellant to sixteen months in prison, with credit for time served, to be followed by forty-four months’ probation. On this appeal the appellant raises one issue concerning his trial and two issues concerning aspects of his sentence. We find no merit in the first issue and affirm the appellant’s conviction. We agree in part with the matters raised in the second and third issues.
Condition (10) states “you will pay restitution, costs, and/or fees, plus a 4% processing fee per payment. All monetary obligations will be made in equal monthly installments.” As worded, this condition is not listed in the form order of probation under Florida Rule of Criminal Procedure 3.986; nor is it a statutorily authorized condition. Therefore, it was required to be orally pronounced. Since it was not, we strike Condition (10).
Condition (12) states that “you will submit to urinalysis, breathalyzer or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs or controlled substances. You shall be required to pay for such tests unless payment is waived by your officer.” We strike the second sentence of Condition (12) because it is a special condition not orally pronounced. Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995).
The appellant’s third issue raises objections to the assessment against him of court costs in the amount of $255 and an attorney’s fee of $1,000. His objections are well taken. The $255 in court costs must be stricken because there is no statutory citation for the assessment contained in the appellant’s sentence. See Smith v. State, 686 So. 2d 8 (Fla. 2d DCA 1996). However, the costs may be reimposed with reference to the appropriate statutory authority. Allen v. State, 692 So. 2d 970 (Fla. 2d DCA 1997).
In imposing an attorney’s fee of $1,000 at sentencing, the trial court failed to advise the appellant of the statutory authority for its imposition, section 27.56, Fla. Stat. (1995); nor did the trial court advise the appellant of his right to contest the amount of the fees. See § 27.56(7), Fla. Stat. (1995); Fla. R.Crim. P. 3.720; Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA), review denied, 515 So. 2d 229 (Fla.1987). Accordingly, we reverse the assessment of attorney’s fees in the amount of $1,000.
On remand, the appellant shall be given thirty days from the date of the mandate to file a written objection to the amount of attorney’s fees imposed. If the appellant objects, the fees shall be stricken but may be reimposed based on the trial court’s findings following a fee hearing. Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992).
Except as specified herein, the appellant’s sentence is affirmed.
Conviction affirmed; sentence affirmed in part and reversed in part; certain conditions of probation stricken.
QUINCE and WHATLEY, JJ., concur.
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Citator
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Richie v. State, 777 So. 2d 977 (Fla. 2d DCA 1999)…test the amount of the lien shall be given at the time of the sentence.” Fla. R.Crim. P. 3.720(d)(1). This court has repeatedly held that it is error to impose such a lien without giving the defendant the required notice. See, e.g., Basham v. State, 695 So. 2d 887 (Fla. 2d DCA 1997). Neither the purported waiver in the affidavit of insolvency nor the acknowledgment in the plea form that a lien is being imposed is sufficient to waive Richie’s right to such notice. See Bull v. State, 548 So. 2d 1103 (Fla.1989)…
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Mayolo v. State, 714 So. 2d 1124 (Fla. 4th DCA 1998)…or the trial court to give Appellant thirty days in which to contest the amount of the fees; if he does so, the fees must be stricken, but they may be reimposed based on the trial court’s findings following a fee hearing. See, e.g., Basham v. State, 695 So. 2d 887 (Fla. 2d DCA 1997). STONE, C.J., and GLICKSTEIN and POLEN, JJ., concur. . This provision was renumbered as section 989.29 and amended by chapter 97-271, section 22, at 4994-96, Laws of Florida, effective July 1, 1997.…
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Rodriguez v. State, 202 So. 3d 460 (Fla. 5th DCA 2016)…entence.’ ” Richie v. State, 777 So. 2d 977, 978 (Fla. 2d DCA 1999) (alteration in original) (quoting Fla. R. Crim. P. 3.720(d)(1)), “[I]t is error to impose such a lien without giving the defendant the required notice.” Id. (citing Basham v. State, 695 So. 2d 887 (Fla. 2d DCA 1997)). [*462] Here, the trial court relied on the following exchange when it denied Rodriguez’s claim. THE COURT: I’m going to judge you [sic] be guilty of the offense. Sanction will be 120 months in the Department of Corrections as a…
Authorities Cited
- Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992)
- Guinn v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)
- Alphonso Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA 1987)
- Smith v. State, 686 So. 2d 8 (Fla. 2d DCA 1996)
- Allen v. State, 692 So. 2d 970 (Fla. 2d DCA 1997)