HARVEY FINKELSTEIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harvey Finkelstein appeals his conviction for ten counts of grand theft and his sentence, challenging the trial court's imposition of public defender's fees and court costs without determining his ability to pay or providing proper notice. The Fourth District Court of Appeal reversed the imposition of these costs and remanded for an evidentiary hearing, finding the trial court violated statutory procedures and relied on a repealed statute.
The trial court erred in imposing the public defender's fees without giving Finkelstein notice and an opportunity to be heard as required by statute. The trial court also erred in imposing costs under a repealed statute. The court reversed the imposition of these costs and remanded for an evidentiary hearing to determine ability to pay and the validity of any discretionary costs.
[1] A trial court must provide a defendant an opportunity to be heard and object to the imposition of public defender fees.
[2] A trial court must give a defendant notice of the imposition of discretionary costs and make an oral pronouncement of such costs and their statutory basis.
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Join FLexlaw to unlock all legal intelligence“Section 938.29(5), Florida Statutes (1997), which controls the award of public defender's fees, requires the trial court to give the defendant the opportunity to be heard and object to the imposition of public defender fees.”
Establishes the statutory requirement that trial courts must provide notice and opportunity to be heard before imposing public defender fees
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Join FLexlaw to unlock all legal intelligenceFinkelstein was convicted of ten counts of grand theft and sentenced to ten years probation with $25,000 in restitution. The trial court imposed $700 …
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[*1227] POLEN, J.
Appellant, Harvey Finkelstein, appeals a final judgment and conviction for ten counts of grand theft, and a sentence of ten years probation. As part of his sentence and a condition of his probation, Finkelstein was also ordered to pay $25,000 in restitution along with $1,125 in public defender’s fees and court costs. Finkelstein raises five issues in this appeal, but we address only the trial court’s imposition of public defender’s fees and court costs, affirming the remaining issues without discussion. Finkelstein argues that the trial court erred in imposing these costs without first determining his ability to pay. We agree, reverse the imposition of these costs and remand for an evidentiary hearing.
Section 938.29(5), Florida Statutes (1997), which controls the award of public defender’s fees, requires the trial court to give the defendant the opportunity to be heard and object to the imposition of public defender fees. In this case, the trial court did not give Finkelstein this opportunity, as the trial court merely entered a written order requiring payment of $700. We reverse and remand with instructions to the trial court to give Finkelstein notice of his right to a hearing on the matter and to schedule a hearing if one is requested. See Fla. R.Crim. P. 3.720(d)(1); see also Ciccia v. State, 854 So. 2d 243 (Fla. 4th DCA 2003).
The trial court also imposed $425 in other costs and fees in a written order, including a $200 “trust fund fee.” The $200 trust fund fee referenced section 27.3455, Florida Statutes (2001). “[C]osts cannot be assessed in a criminal case unless there is statutory authority for their imposition.” Bradshaw v. State, 638 So. 2d 1024, 1025 (Fla. 1st DCA 1994). Statutorily mandated costs may be imposed without notice to the defendant. Id. However, the trial court is required to give the defendant notice of the imposition of discretionary costs and to make an oral pronouncement of such costs and their statutory basis. Roberts v. State, 813 So. 2d 1016, 1017 (Fla. 1st DCA 2002). If this does not occur, and discretionary costs are made a condition of probation, they are to be stricken, and cannot be re-imposed. Id.
We reverse the imposition of the additional fees, and remand for an evidentiary hearing to determine which costs are discretionary, as opposed to mandatory, and to determine whether there is a statutory basis for the imposition of such costs. While the trial court referenced section 27.3455, Florida Statutes (2001), in the written order, this statute has been repealed, and is no longer valid. Any costs which are determined to be discretionary can no longer be imposed. See Roberts, 813 So. 2d at 1017.
KLEIN and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015)…fee if the trial court pronounced it at sentencing and informed him of his right to contest the amount at a hearing. See § 938.29(l)(a), Fla. Stat. [*987] (2007).” Swift v. State, 53 So. 3d 394, 395 (Fla. 2d DCA 2011). See also Finkelstein v. State, 944 So. 2d 1226, 1227 (Fla. 4th DCA 2006) (reversing public defender’s fee and remanding "with instructions to the trial court to give Finkelstein notice of his right to a hearing on the matter and to schedule a hearing if one is requested,” as required by section…
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Ladarius Brooks v. State, 199 So. 3d 974 (Fla. 4th DCA 2016)…ailed to state the amount of the fee or to advise [the defendant] of his right to a hearing to contest that amount, as required by section 938.29(5), Florida Statutes (2004) and Florida Rule of Criminal Procedure 3.720(d)(1)”); Finkelstein v. State, 944 So. 2d 1226, 1227 (Fla. 4th DCA 2006) (noting that the defendant was deprived of an opportunity to “be heard and object to the imposition of public defender fees,” and reversing and remanding in part with instructions for jbrial court to provide defendant with…
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N.j.p v. State, 308 So. 3d 190 (Fla. 4th DCA 2021)…be imposed without notice to the defendant. However, the trial court is required to give the defendant notice of the imposition of discretionary costs and to make an oral pronouncement of such costs and their statutory basis.” Finkelstein v. State, 944 So. 2d 1226, 1227 (Fla. 4th DCA 2006). Additionally, “the trial court is required to make factual findings that such higher fees or costs were actually incurred.” Davis v. State, 256 So. 3d 902, 902 (Fla. 4th DCA 2018) (addressing public defender fees); see a…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Torey Bradshaw and Alford R. Martin v. State, 638 So. 2d 1024 (Fla. 1st DCA 1994)
- Merrick Roy Richards v. State, 813 So. 2d 1016 (Fla. 4th DCA 2002)
- Ciccia v. State, 854 So. 2d 243 (Fla. 4th DCA 2003)
- Roberts v. State, 813 So. 2d 1016 (Fla. 1st DCA 2002)