MARIA EILEEN BRATTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sheriff's investigatory cost imposed without a record request and a public defender lien imposed without notice of a right to a hearing must be struck.
[1] A trial court's order on a motion filed pursuant to Florida Rule of Appellate Procedure 8.800(b) is a nullity if not ruled upon within sixty days of filing.
[2] A sheriff's investigatory cost may be stricken when there is no record evidence that it was requested or documented by the State.
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Join FLexlaw to unlock all legal intelligenceAppellant challenged sentencing errors regarding a sheriff's investigatory cost and a public defender lien. The trial court's order addressing these i…
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In this Anders* appeal, appellant raises two minor sentencing errors. She argues the trial court erred in imposing a $100 sheriffs investigatory cost because there was no request for that cost on the record. She further argues the court erred in imposing a public defender lien because the court did not inform her of her right to a *591hearing to dispute the amount. Appellant preserved these issues through a motion filed pursuant to Florida Rule of Appellate Procedure 8.800(b). The trial court purported to grant the motion and strike the cost and lien. However, because the court ruled on the motion more than sixty days after the motion was filed, the motion was deemed denied, and the order was a nullity. Johnson v. State, 149 So.3d 732, 733 n. 2 (Fla. 1st DCA 2014).
Having been given the opportunity to respond pursuant to Harrison v. State, 146 So.3d 76, 80-81 (Fla. 1st DCA 2014), the State concedes error. Thus, we strike the sheriffs investigatory cost because there was no request for that cost on the record. See Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011) (striking sheriffs investigatory costs because there was “no record evidence that they were requested or documented by the State” as required by section 938.27, Florida Statutes).
We also strike the public defender lien and remand with instructions that the trial court advise appellant of her right to contest the amount of the lien. See Harrison, 146 So.3d at 79 (finding where the trial court fails to give the defendant the “ ‘opportunity to object’ to the cost of defense ... we are constrained to reverse this [] cost and remand for the trial court to advise Appellant of his right to a hearing to contest the amount of the indigent legal assistance lien”); § 938.29(5), Fla. Stat.; Fla. R. Crim. P. 3.720(d)(1). Appellant’s judgment and sentence are otherwise affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED with instructions.
BENTON and MAKAR, JJ., concur.
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Citator
Cited By
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Cain v. State, 197 So. 3d 1096 (Fla. 1st DCA 2016)…the proper procedure. Id. However, the sheriffs investigatory cost may not be reimposed on remand because the record does not show that the state requested this cost. See Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015); [*1097] Bratton v. State, 156 So. 3d 590 (Fla. 1st DCA 2015); Cook v. State, 149 So. 3d 118 (Fla. 1st DCA 2014). AFFIRMED in part; REVERSED in part and REMANDED with directions. WETHERELL, MAKAR, and WINOKUR JJ., concur. . Harrison v. State, 146 So. 3d 76 (Fla. 1st DCA 2014) (establ…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Jamarl Vaughn v. State, 65 So. 3d 138 (Fla. 1st DCA 2011)
- Terone Harrison v. State, 146 So. 3d 76 (Fla. 1st DCA 2014)
- Johnson v. State, 149 So. 3d 732 (Fla. 5th DCA 2014)