JAMES SPRUILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Spruill appealed his convictions for sexual battery and incest, challenging both the convictions and sentences. The court affirmed the convictions but reversed the imposition of $66.50 in discretionary costs because the trial court failed to orally pronounce them and failed to make a statutory finding of ability to pay.
The motion was timely because it was filed before the appellate brief was actually served, and the rule's timeliness requirement refers to the filing of the brief, not the date established by rules for when it should be filed. The discretionary costs must be reversed because the trial court failed to orally pronounce them and failed to make the required statutory finding that Spruill had the ability to pay.
[1] A motion to correct a sentencing error is timely if served before the appellate brief is filed, not by the deadline established by rules for filing the brief.
[2] A trial court must orally pronounce discretionary costs imposed as part of a sentence.
Previewing 2 of 4 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“The rule establishing the timeliness of the motion refers to the filing of the brief, not the date established by the rules as to when the brief should be filed.”
Establishes that the trial court erred in calculating timeliness by using the scheduled due date rather than the actual filing date of the appellate brief.
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Join FLexlaw to unlock all legal intelligenceSpruill was convicted of sexual battery and incest and received a written judgment and sentence requiring him to pay $66.50 in discretionary costs. He…
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DAVIS, Judge.
James Spruill challenges his convictions and sentences for sexual battery and incest. We affirm the convictions without discussion; however, we reverse the imposition of certain discretionary costs.
Spruill’s written judgment and sentence required him to pay $66.50 in discretionary costs. He filed a motion to correct sentencing error alleging that the trial court failed to orally impose those costs and failed to find that he had the ability to pay. The trial court denied Spruill’s motion as untimely, finding that Florida Rule of Criminal Procedure 3.800(b)(2) required such motions to be served before the filing of the appellate brief. The trial court concluded that since Spruill’s brief had been due on March 22, 2003, well before he filed his motion on June 16, 2003, the motion was untimely. The decision was made notwithstanding the fact that Spruill’s initial brief had not been filed.
On May 20, 2003, this court sua sponte entered an order requiring Spruill to serve his initial brief within twenty-five days, making his brief due by June 16, 2003. As such, Spruill’s motion to correct sentence, served on June 16, 2003, was timely as it was filed prior to the date that his brief was served.1 The rule establishing the timeliness of the motion refers to the filing of the brief, not the date established by the rules as to when the brief should be filed. Accordingly, the trial court should have considered the substance of the motion. In his motion, Spruill argued that the $66.50 in discretionary costs that were imposed must be reversed because the trial court failed to orally pronounce them, and because the trial court failed to make the required statutory finding that he had the ability to pay the costs imposed, see § 939.18(l)(b), Fla. Stat. (1999). Given the trial court’s decision to appoint the public defender to represent Spruill on appeal, it is unknown whether Spruill had the ability to pay. Accordingly, we must reverse the imposition of the $66.50 in costs.
While we affirm Spruill’s convictions, we reverse that portion of the sentence imposing $66.50 in costs and remand for correction of the written sentence. Spruill need not be present for the correction of the sentencing document.
Affirmed in part; reversed in part.
SILBERMAN and CANADY, JJ„ Concur. . Pursuant to this court's granting of Spruill's motion for extension of time, the initial brief was served on November 18, 2003.