KEVIN TERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the mandatory minimum sentence for firearm possession but reversed the imposition of certain costs and restitution due to procedural defects.
Appellant was convicted and sentenced, including a mandatory minimum sentence for firearm possession and ordered to pay costs and restitution. The Sta…
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PER CURIAM.
In this direct appeal, Appellant challenges the imposition of a three-year minimum mandatory sentence for possession of a firearm pursuant to section 775.087(2), Florida Statutes, and certain costs, fees and restitution ordered. We affirm the minimum mandatory sentence and imposition of the public defender’s fee.
We strike the $330 investigation and prosecution cost from the written order because the State failed to provide documentation of this requested amount. See Daniels v. State, 656 So. 2d 251 (Fla. 1st DCA 1995); § 938.27(1), Fla. Stat. The $2 discretionary cost imposed pursuant to section 938.15, Florida Statutes, is also stricken because it cannot be imposed without Appellant receiving notice and an opportunity to be heard. See Brooks v. State, 676 So. 2d 48 (Fla. 1st DCA), rev. denied, 683 So. 2d 482 (Fla.1996); Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995). On remand, the trial court may reimpose these costs after complying with the “procedural safeguards” set forth in Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). See id.; Lee v. State, 677 So. 2d 41, 43 (Fla. 1st DCA 1996).
Where, as here, the State did not provide any evidence of the amount of a victim’s loss, imposition of restitution deprived Appellant of an opportunity to be heard as to the amount assessed. See Rhoden v. State, 622 So. 2d 122, 122-23 (Fla. 1st DCA 1993). Therefore, we strike the $3,685.62 in restitution from the written order and remand for further proceedings consistent with section 775.089, Florida Statutes. See Rhoden, supra, at 123; Norman v. State, 659 So. 2d 722 (Fla. 1st DCA 1995)(citing Dubois v. State, 650 So. 2d 228 (Fla. 1st DCA 1995); Medina v. State, 633 So. 2d 578 (Fla. 4th DCA 1994); Rhoden, supra).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
ALLEN, C.J., ERVIN and BOOTH, JJ., CONCUR.
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NIX v. State, 84 So. 3d 424 (Fla. 1st DCA 2012)…2011) (reversing the imposition of discretionary fines and authorizing the court to reimpose the fines on remand “by following the proper procedure, which includes individually announcing each assessment and the authority for each”); Terry v. State, 791 So. 2d 1162, 1163 (Fla. 1st DCA 2001) (reversing imposition of $2 discretionary cost and stating that the trial court may reimpose the cost “after complying with the ‘procedural safeguards’ set forth in Reyes ”); Smiley, 704 So. 2d at 195 (reversing imposition…
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Waller v. State, 911 So. 2d 226 (Fla. 2d DCA 2005)…711 So. 2d 1303 (Fla. 2d DCA 1998); Higdon v. State, 709 So. 2d 572 (Fla. 2d DCA 1998); Wyatt v. State, 708 So. 2d 655 (Fla. 2d DCA 1998). Likewise, our opinion today would now appear to conflict with the First District’s opinions in Terry v. State, 791 So. 2d 1162 (Fla. 1st DCA 2001), and Griffin v. State, 800 So. 2d 321 (Fla. 1st DCA 2001), because those opinions followed our earlier approach to this issue. .See Pasco County, Fla. Code of Ordinances art. I, §§ 34-4, 54-1 (1994). . This statute was also ame…
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Munoz v. State, 884 So. 2d 1070 (Fla. 5th DCA 2004)…e costs, and the defendant must be given notice and an opportunity to be heard”). Such costs may be reimposed if the state can produce the required documentation at a noticed hearing. Hill v. State, 845 So. 2d 310 (Fla. 2d DCA 2003); Terry v. State, 791 So. 2d 1162 (Fla. 1st DCA 2001). We affirm the convictions, strike the imposition of costs, and remand to provide the state an opportunity to comply with the procedural requirements of section 938.27. [*1071] AFFIRMED in part; REVERSED in part; and REMANDED wi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995)
- Brooks v. State, 676 So. 2d 48 (Fla. 1st DCA 1996)
- Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993)
- Dubois v. State, 650 So. 2d 228 (Fla. 1st DCA 1995)
- Daniels v. State, 656 So. 2d 251 (Fla. 1st DCA 1995)
- Norman v. State, 659 So. 2d 722 (Fla. 1st DCA 1995)
- Graham v. State, 659 So. 2d 722 (Fla. 1st DCA 1995)
- Saba v. State, 677 So. 2d 41 (Fla. 5th DCA 1996)
- Alphonso LEE v. State, 677 So. 2d 41 (Fla. 1st DCA 1996)