KENNETH MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in imposing a public defender fee and certain service charges without providing the defendant adequate notice and opportunity to be heard.
[1] A trial court must advise a defendant of their right to contest a public defender fee at a hearing to ensure a valid waiver of that right.
[2] A defendant's silence or non-verbal response, without being informed of the right to a hearing, does not constitute a valid waiver of the right to contest a public defend…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted and sentenced, and the trial court imposed a public defender fee and service charges for lien preparation and recording. T…
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Kenneth McMillan appeals his conviction and sentence for attempted burglary of a structure. We reverse solely as to the trial court’s imposition of a public defender fee and two service charges assessed for preparation and recording of “Satisfaction of Lien/Document.” We affirm in all other respects.1
McMillan challenges the imposition of a $100 public defender fee, arguing that the trial court failed to inform him of his right to contest the amount of the fee at a hearing as required by Florida Rule of Criminal Procedure 3.720(d)(1).2 The State argues that McMillan waived his right to a hearing, noting the following colloquy between the trial court and McMillan:
THE COURT: And, Mr. McMillan, do you agree $100 is a reasonable public defender fee in the case?
THE DEFENDANT: (Shrugs shoulders).
THE COURT: All right. He remains mute on that point. I’ll assess it. He’s had his opportunity to object.
*1238In Norris v. State, 659 So.2d 1352, 1355 (Fla. 5th DCA 1995), the Fifth District addressed a colloquy similar to that quoted above. There, however, when the trial court asked the defendant if he had any objection to a public defender fee of $100, the defendant replied that he did hot. The appellate court concluded that the exchange was insufficient to comply with the due process requirements of rule 3.720(d)(1) and section 27.56(7), Florida Statutes (1993).3 The court reasoned that the rule and statute were not subject to implied waiver and that although the defendant indicated that he did not object to the lien, he did not specifically waive his right to a hearing. Id.; see also Wilson v. State, 675 So.2d 613, 615 (Fla. 2d DCA 1996) (concluding that the defendant’s failure to object to the imposition of a public defender lien did not constitute a valid waiver of the due process requirements of rule 3.720(d)(1)).
Here, the trial court did not advise McMillan of his right to contest the amount of the public defender fee. McMillan’s shrugging of his shoulders and remaining silent, without having been advised that he had a right to contest the fee at a hearing, does not constitute a valid waiver of his right to a hearing. Thus, we reverse the imposition of the $100 public defender fee. The trial court may reimpose the fee if it provides McMillan with notice of its intent to do so and the opportunity to be heard at a hearing on the matter. See Bruno v. State, 960 So.2d 907, 908 (Fla. 2d DCA 2007). On remand, the trial court shall enter a corrected Monetary Obligation Order and Lien Order either omitting the $100 fee or reflecting its reimposition.
McMillan also challenges two charges appearing on the Lien Order and on a Judgment Lien, both rendered on August 29, 2007. One is a $12 service charge for “Preparation of Satisfaction of Lien/Document” pursuant to section 28.24(8), Florida Statutes (2006), and the other is a $16 charge for “Recording of Satisfaction of Lien/Document” pursuant to section 28.241. McMillan claims that section 28.24(8) only authorizes the clerk to charge $6 for preparation of the satisfaction of lien and that section 28.241 does not authorize the imposition of a $16 charge for recording a satisfaction of lien.4 The State concedes error, acknowledging that the trial court should strike $6 of the $12 service charge and should rescind the $16 charge. Thus, we reverse as to these charges and remand for the trial court to enter corrected lien documents.
In summary, we reverse the imposition of the $100 public defender fee, $6 of the $12 service charge, and the $16 recording charge. On remand, the trial court shall enter a corrected Monetary Obligation Order, Lien Order, and Judgment Lien consistent with this opinion. If the trial court reimposes the $100 public defender fee, it shall do so only after proper notice and the opportunity for McMillan to be heard on that issue.
Affirmed in part, reversed in part, and remanded.
FULMER, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.
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Estaban E. Gonzalez v. State, 40 So. 3d 60 (Fla. 2d DCA 2010)…tat. (2007). Because Gonzalez was not advised of his right to a hearing to contest the amount of the public defender fee, we reverse the imposition of the $1500 public defender fee and direct the trial court to strike the fee. See McMillan v. State, 8 So. 3d 1237, 1238 (Fla. 2d DCA 2009) (reversing public defender fee because the trial court did not advise the defendant that he had a right to contest the fee at a hearing). On remand, the trial court may reimpose the fee provided it follows proper procedure b…
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Innocent Gedehomme v. State, 160 So. 3d 533 (Fla. 2d DCA 2015)…son, 983 So. 2d at 571. Gedehomme challenges that he was not given an opportunity to request a hearing regarding the cost for his public defender. See § 938.29, Fla. Stat. (2012). This is error, and the State concedes as much. See McMillan v. State, 8 So. 3d 1237, 1238 (Fla. 2d DCA 2009). Accordingly, we reverse the cost judgment. The court may reimpose the $100 public defender fee but only after proper notice and the opportunity for Gedehomme to be heard on that issue. See id. Gedehomme also challenges tha…
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C.P. v. State, 31 So. 3d 976 (Fla. 2d DCA 2010)…$250 public defender fee and remand to the trial court to strike it. The trial court may reimpose the fee only if it provides C.P. with notice of its intent to do so and the opportunity to be heard at a hearing on the matter. See McMillan v. State, 8 So. 3d 1237, 1238 (Fla. 2d DCA 2009); Bruno v. State, 960 So. 2d 907, 908 (Fla. 2d DCA 2007). Affirmed in part, reversed in part, and remanded. VILLANTI and WALLACE, JJ., Concur. . The issue was preserved by the filing of a Florida Rule of Juvenile Proce…
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
- Norris v. State, 659 So. 2d 1352 (Fla. 5th DCA 1995)
- Bruno v. State, 960 So. 2d 907 (Fla. 2d DCA 2007)
- Milo L. Kirkland v. State, 675 So. 2d 613 (Fla. 2d DCA 1995)
- Wilson v. State, 675 So. 2d 613 (Fla. 2d DCA 1996)