GEORGINA SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Georgina Smith appeals her convictions and sentences for grand theft and scheming to defraud after entering no contest pleas. The appellate court finds no substantive error in the convictions or sentences but reverses and remands to correct the judgment by striking a $20 Crime Stoppers Trust Fund surcharge that was improperly imposed as a cost associated with a discretionary fine that was never properly pronounced at sentencing.
The $20 surcharge should have been stricken along with the $175 fine because section 938.06(1) authorizes the surcharge only as an addition to any fine prescribed by law, and without a valid underlying fine, no surcharge could be imposed.
[1] A discretionary fine not orally pronounced at sentencing is an error that can be corrected.
[2] An additional surcharge authorized by statute to be imposed on any fine prescribed by law cannot be imposed if the underlying fine was not properly imposed.
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Join FLexlaw to unlock all legal intelligence“The $175 fine was a discretionary fine that should have been orally pronounced at sentencing but was not.”
Establishes the foundational error requiring correction of the sentencing judgment
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Join FLexlaw to unlock all legal intelligenceSmith entered no contest pleas to charges of grand theft and scheming to defraud. The original written judgment included a $175 discretionary fine und…
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Georgina Smith appeals the judgments and sentences imposed after she entered no contest pleas to charges of grand theft and scheming to defraud. Ms. Smith’s counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991). After a careful review of the record, we find no error in Ms. Smith’s judgments and the probationary sentences imposed. However, we reverse and remand with directions to correct the amended judgment for fines and costs by striking a $20 cost for the Crime Stoppers Trust Fund.
The original written judgment for fines and costs included a $175 fine under section 775.083, Florida Statutes (2006). In addition, the written judgment for fines and costs included a $20 cost for the Crime Stoppers Trust Fund in accordance with section 938.06, Florida Statutes (2006). The $175 fine was a discretionary fine that should have been orally pronounced at sentencing but was not. See Masengale v. State, 969 So.2d 1218, 1219 (Fla. 2d DCA 2007). Ms. Smith filed a motion to correct sentencing error in which she sought relief from both the $175 fine and the $20 surcharge under Masengale. The trial court ordered the State to respond but only directed the State’s attention to the $175 fine. The State responded, conceding error. The trial court then entered an order directing the clerk of the circuit court to strike the $175 fine, and an amended judgment for fines and costs was subsequently entered, deleting the $175 fine. However, the order failed to address the $20 surcharge, and the amended judgment for *125fines and costs still contains this surcharge.
On appeal, Ms. Smith argues that the trial court erroneously failed to strike the $20 cost in addition to the $175 fine. Ms. Smith is correct, and the State properly concedes error. Section 938.06(1) authorizes the additional $20 cost as “an additional surcharge” “to any fine prescribed by law.” Because the $175 fine was not properly imposed, the trial court could not impose the additional $20 surcharge. Perdue v. State, 17 So.3d 1283, 1283 (Fla. 2d DCA 2009); Masengale, 969 So.2d at 1219. Therefore, this cost should have been stricken as well.
Accordingly, we affirm the judgments and sentences imposed on Ms. Smith, but we remand for the entry of a second amended judgment for fines and costs striking the $20 surcharge.
Affirmed and remanded with instructions.
KHOUZAM and CRENSHAW, JJ., Concur.
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Citator
Authorities 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)
- Perdue v. State, 17 So. 3d 1283 (Fla. 2d DCA 2009)
- Little v. State, 969 So. 2d 1218 (Fla. 2d DCA 2007)