LEONDRAY KIRKLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Kirkland challenged his second-degree murder conviction and sentence. The court affirmed the conviction but reversed certain discretionary costs and fees imposed by the trial court, finding the trial court failed to properly advise Kirkland of his rights regarding the Public Defender fee and imposed costs not authorized by statute.
The $100 investigative cost must be orally pronounced as it is discretionary, not mandatory. The Public Defender fee must be struck because the trial court failed to advise Appellant of his right to contest the fee and conduct a hearing. The $20 Crime Stoppers Trust Fund cost must be stricken because it is only imposed when a fine is actually imposed, and no fine was imposed here.
[1] A discretionary investigative cost must be orally pronounced by the trial court.
[2] A Public Defender fee must be stricken if the trial court fails to advise the defendant of their right to contest the fee when it is orally imposed.
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 State properly concedes that the trial court should have orally pronounced the $100 investigative cost, as it is a discretionary cost and not a mandatory cost.”
Establishes that discretionary costs require oral pronouncement at sentencing.
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Join FLexlaw to unlock all legal intelligenceKirkland was convicted of second-degree murder and sentenced by the trial court. At sentencing, the trial court imposed an investigative cost of $100,…
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Appellant challenges his conviction and sentence for second-degree murder. We affirm the conviction without comment, but we reverse certain costs imposed by the trial court and remand for correction of sentencing errors.
The State properly concedes that the trial court should have orally pro*5nounced the $100 investigative cost, as it is a discretionary cost and not a mandatory cost. See Baker v. State, 86 So.3d 1208, 1209 (Fla. 1st DCA 2012) (citing Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011)).
The State also correctly concedes that the Public Defender fee should be struck because the trial court did not advise Appellant of his right to contest the fee when it was orally imposed. See § 938.29(5), Fla. Stat.; Fla. R.Crim. P. 3.720(d)(1). As this court has previously held, this fee must be stricken and, on remand, the trial court shall advise Appellant of his right to a hearing to contest the Public Defender fee. See Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011).
Finally, as the trial court did not impose a fine, pursuant to section 938.06(1), Fla. Stat (2009), the $20 imposition of court costs must be stricken.* See Clavelle v. State, 80 So.3d 456, 457 (Fla. 1st DCA 2012); see also Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011). Accordingly, we affirm the judgment and sentence, but remand for correction of the sentencing errors. We note that if the trial court determines it will not impose any of the above fees, it is not necessary to conduct another sentencing proceeding which would require Appellant’s presence.
AFFIRMED in part, REVERSED in part, and REMANDED.
WOLF, THOMAS, and MARSTILLER, JJ., concur.
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Citator
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Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015)…r the sentencing hearing pursuant to section 938.27, Florida Statutes (2010). Assessing this cost is discretionary, and it was error to impose it without notice or hearing and without specifically identifying it at sentencing. See Kirkland v. State, 106 So. 3d 4, 4-5 (Fla. 1st DCA 2013); Baker v. State, 86 So. 3d 1208, 1209 (Fla. 1st DCA 2012). See also Lippwe v. State, 152 So. 3d 782, 783 (Fla. 1st DCA 2014) (ruling that investigative fees pursuant to section 938.27(1), Florida Statutes “must be requested…
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DeSALVO v. State, 107 So. 3d 1185 (Fla. 1st DCA 2013)…; but see Love v. State, 992 So. 2d 823 (Fla. 2d DCA 2008). If the trial court elects not to reimpose the stricken fine, surcharges, and fees, Appellant need not be present for the entry of the corrected judgment and sentence. See Kirkland v. State, 106 So. 3d 4 (Fla. 1st DCA 2013). AFFIRMED in part; REVERSED in part; and REMANDED with directions. ROBERTS, WETHERELL, and MARSTILLER, JJ, concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also In re Anders Briefs, 581 S…
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Kalvin Youman v. State, 112 So. 3d 693 (Fla. 1st DCA 2013)…ocedures. We agree. See § 938.29(5), Fla. Stat. (2008); Fla. R.Crim. P. 3.720(d)(1); In re Anders Briefs, 581 So. 2d 149, 152 (Fla.1991) (allowing preserved minor sentencing errors imposing costs to be raised in an Anders appeal); Kirkland v. State, 106 So. 3d 4, 5 (Fla. 1st DCA 2013) (striking the Public Defender fee and remanding for the trial court to advise defendant of the right to a hearing to contest it). Counsel asserts also that, where the trial court imposed no fine, it was error to add the $20 c…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jamarl Vaughn v. State, 65 So. 3d 138 (Fla. 1st DCA 2011)
- Sharyon Sanders v. State, 101 So. 3d 373 (Fla. 1st DCA 2012)
- Clark v. State, 55 So. 3d 674 (Fla. 1st DCA 2011)
- Pullam v. State, 55 So. 3d 674 (Fla. 1st DCA 2011)
- Comer v. State, 502 So. 2d 513 (Fla. 1st DCA 1987)
- Baldwin v. State, 80 So. 3d 456 (Fla. 1st DCA 2012)
- Clavelle v. State, 80 So. 3d 456 (Fla. 1st DCA 2012)
- Antraveius Tyrell Baker v. State, 86 So. 3d 1208 (Fla. 1st DCA 2012)