GABRIEL FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gabriel Fisher was convicted of two counts of cocaine sales and sentenced to concurrent probation and community control. While the conviction itself was affirmed, the appellate court reversed the sentencing order and remanded for correction of multiple sentencing errors, including improper conditions of probation and improperly assessed costs and fees.
The convictions for sale of cocaine are affirmed. The sentencing orders are affirmed in part and reversed in part: they must be corrected to reflect a not guilty plea and jury trial conviction, show concurrent sentences, and strike the public defender assessment fee of $250, court costs, investigative costs, and unspecified fines totaling $700, as well as the special conditions requiring Fisher to avoid places serving alcohol and to pay for random drug and alcohol testing.
[1] A written order of probation or community control must accurately reflect the defendant's plea and the outcome of the trial.
[2] Sentences for multiple convictions must be ordered to run concurrently if so intended by the court.
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Join FLexlaw to unlock all legal intelligence“The written orders of probation and community control should be corrected to indicate that Fisher pled not guilty rather than nolo contendere and was convicted following a jury trial.”
Establishes requirement that sentencing orders accurately reflect the defendant's plea and method of conviction.
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Join FLexlaw to unlock all legal intelligenceFisher was convicted on two counts of sale of cocaine under Florida Statute § 893.13(1)(a)1 following a jury trial where he pled not guilty. The trial…
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PER CURIAM.
The defendant, Gabriel Fisher, was convicted on two counts of sale of cocaine, in violation of section 893.13(1)(a)1, Florida Statutes. His court-appointed lawyer has filed a brief under the procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
While we find that no reversible error occurred below, we must remand for the correction of several sentencing errors. See Coupe v. State, 564 So. 2d 1199 (Fla. 1st DCA 1990), approved as modified on other grounds, In re Anders Briefs, 581 So. 2d 149 (Fla.1991).
The written orders of probation and community control should be corrected to indicate that Fisher pled not guilty rather than nolo contendere and was convicted following a jury trial. The orders should also show that his sentences for the two convictions are to run concurrently; court costs of $255, investigative costs of $100, and unspecified fines totaling $700 are stricken, as no statutory authority was cited for their assessment, see Bradshaw v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994); and the public defender assessment of $250 is stricken, since the record does not reflect that the trial court gave Fisher notice and an opportunity to be heard as to the amount of this fee at the time of the sentencing hearing. See Fla.R.Crim.P. 3.720(d)(1); Buiey v. State, 583 So. 2d 384 (Fla. 1st DCA 1991).
Although the trial judge did not orally pronounce the condition of probation requiring Fisher to submit to random drug testing, we nonetheless affirm this portion of the sentence, because section 948.03, Florida Statutes (1995) provides constructive notice of this condition and expressly states that it may be imposed without oral pronouncement. However, the special conditions of probation and community control that Fisher not enter places that serve alcohol and that he pay for the random drug and alcohol testing are stricken, since the trial court did not announce these conditions orally, as is required in State v. Hart, 668 So. 2d 589 (Fla.1996). See also Lutz v. State, 682 So. 2d 1175 (Fla. 2d DCA 1996).
On remand, the trial court may not reimpose the special conditions we have stricken here. See Justice v. State, 674 So. 2d 123 (Fla.1996).
The trial court may reimpose the stricken costs or fines if it identifies the nature of and statutory authority for their assessment and, for any discretionary fines or costs, allows Fisher notice and an opportunity to contest them.
However, any fee originally imposed pursuant to section 939.01(1), Florida Statutes, may not be reimposed on remand, as the record contains no request by the state for such a fee. See Madison v. State, 664 So. 2d 1140, 1141 (Fla. 5th DCA 1995).
Finally, the trial court must also identify the statutory authority for the public defender fee (section 27.56, Florida Statutes) and allow the defendant notice and an opportunity to contest the amount of the fee before it may reimpose it. See Buiey.
Affirmed in part and reversed in part.
ALLEN, WEBSTER and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…ity for these costs); Jones v. State, 700 So. 2d 776 (Fla. 2d DCA 1997) (striking imposition of discretionary costs where costs were not orally pronounced at sentencing and the statutory bases for such were not otherwise indicated); Fisher v. State, 697 So. 2d 1291 (Fla. 1st DCA 1997) (striking costs and fines which were imposed against defendant, but for which no statutory authority was cited); Hopkins v. State, 697 So. 2d 1009 (Fla. 4th DCA 1997) (striking imposition of costs not orally announced at sentenci…
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Jamarl Vaughn v. State, 65 So. 3d 138 (Fla. 1st DCA 2011)…indication that the State requested or demonstrated these costs as required under the statute”). On remand, the state may not seek to reimpose these costs because the record does not demonstrate that the state requested these costs. Fisher v. State, 697 So. 2d 1291, 1292 (Fla. 1st DCA 1997). Finally, the state properly concedes that that the Public Defender fee should be stricken because the trial court did not advise Vaughn of his right to contest the amount. See § 938.29(5), Fla. Stat.; Fla. R.Crim. P. Rul…
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Williams v. State, 845 So. 2d 987 (Fla. 1st DCA 2003)…lly pronounced without any further specificity as to the nature of the particular fees constituting that lump sum or the authority for imposition of such fees. This was error. See Smiley v. State, 704 So. 2d 191 (Fla. 1st DCA 1997); Fisher v. State, 697 So. 2d 1291 (Fla. 1st DCA 1997); Bradshaw v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994). On remand, the trial court shall give the appellant an opportunity to be heard regarding the imposition of any costs which are discretionary. See Rhodes v. State, 683 So. 2…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Torey Bradshaw and Alford R. Martin v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994)
- Brown v. State, 583 So. 2d 384 (Fla. 3d DCA 1991)
- Madison v. State, 664 So. 2d 1140 (Fla. 5th DCA 1995)
- Coupe v. State, 564 So. 2d 1199 (Fla. 1st DCA 1990)
- Lutz v. State, 682 So. 2d 1175 (Fla. 2d DCA 1996)
- Yunger v. Fed. Home Loan Mortg. Corp., 682 So. 2d 1175 (Fla. 5th DCA 1996)