INNOCENT GEDEHOMME, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Innocent Gedehomme appealed his conviction for sexual battery, challenging his sentence on an Anders brief. The court affirmed his conviction and ten-year prison sentence but reversed the cost components of his sentence due to the trial court's failure to consider his Rule 3.800(b)(2) motion and improper imposition of costs without proper notice and evidentiary support.
The court held that the trial court erred in striking Gedehomme's Rule 3.800(b)(2) motion without considering it on the merits, and erred in imposing both the public defender fee without providing notice and opportunity to be heard, and the $200 investigative costs without competent, substantial evidence supporting such a flat fee.
[1] A motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) is the appropriate mechanism to seek relief from the erroneous imposition of costs.
[2] A pro se motion to correct sentencing errors filed under Florida Rule of Criminal Procedure 3.800(b)(2) should not be stricken solely because the defendant is represented…
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Join FLexlaw to unlock all legal intelligence“A rule 3.800(b)(2) motion is the appropriate mechanism to seek relief from the erroneous imposition of costs.”
Establishes that Rule 3.800(b)(2) is the proper procedural vehicle for challenging sentencing costs.
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Join FLexlaw to unlock all legal intelligenceGedehomme was convicted of sexual battery on a person over twelve without serious bodily injury and sentenced to ten years in prison. The sentencing c…
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In this Anders 1 appeal, Innocent Gede-homme challenges his conviction for sexual battery on a person over twelve (no seri*534ous bodily injury) and attendant sentence to ten years’ prison. We affirm the conviction and incarcerative portion of the sentence without comment. But because the court erred in failing to consider Gede-homme’s motion to correct sentencing errors filed under Florida Rule of Criminal Procedure 3.800(b)(2) on the merits, we reverse the cost order and remand for further consideration thereof.
When appealing to this court, Ge-dehomme’s counsel filed a no-merit brief pursuant to 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). We directed Gedehomme that he could file a pro se brief. He did so and challenged the court’s failure to rule on his motion to correct sentencing error filed under rule 3.800(b)(2). In his motion, he had challenged two costs imposed on him: the public defender fee and investigative costs. Concluding there was arguable merit to his claim, see In re Anders Briefs, 581 So.2d at 151, we directed counsel to brief whether it was error to strike Gede-homme’s pro se motion and to address the costs issues he raised. Counsel then did so and the State responded, conceding error as to the court striking the motion and as to the public defender fee.
A rule 3.800(b)(2) motion is the appropriate mechanism to seek relief from the erroneous imposition of costs. Jackson v. State, 983 So.2d 562, 574 (Fla.2008). The court struck Gedehomme’s motion pursuant to Coffelt v. State, 905 So.2d 269, 270 (Fla. 2d DCA 2005), concluding that because Gedehomme was counseled when his pro se motion was filed, it must be stricken. This was error because Gede-homme was not counseled for purposes of the motion based on appellate counsel’s filing an Anders brief and because the motion was timely filed. See Lopez v. State, 905 So.2d 1045, 1047 (Fla. 2d DCA 2005) abrogated on other grounds as stated in Pifer v. State, 59 So.3d 225, 228 (Fla. 2d DCA 2011). Thus the court should have considered the motion on the merits.
The filing of the rule 3.800(b)(2) motion preserved the errors raised therein for our review. See Jackson, 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 that the investigatory costs are not supported by competent, substantial evidence. See § 938.27. The sentencing court had before it the Manatee County Sheriff Office’s form affidavit, and the State argues that this is sufficient. But that affidavit reflects ' a “0” for all of the individualized costs and a flat fee of $200 imposed in felony cases. We have found support for imposing a flat fee in neither the Florida Statutes nor in the Manatee County ordinances. We infer that this is a matter of internal policy in the Sheriffs Office, which, of course, simply fails to be competent, substantial evidence. Accordingly, we also reverse the cost order to the extent that it imposes the $200 fee for investigatory costs. On remand, the court may reimpose investigatory costs if properly substantiated.
Affirmed in part, reversed in part, and remanded with directions.
LaROSE and SLEET, JJ., Concur.
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Newton v. State, 262 So. 3d 849 (Fla. 2d DCA 2018)
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Stange v. State, 45 Fla. L. Weekly D1373 (Fla. 2d DCA 2020)…nkins v. State, 45 Fla. L. Weekly D1373, D1373 (Fla. 2d DCA June 5, 2020) ("revers[ing] the $100 public defender fee and remand[ing] for the trial court to either strike the fee or advise Mr. Jenkins of his right to contest it"); Gedehomme v. State, 160 So. 3d 533, 534 (Fla. 2d DCA 2015) (holding that the trial court erred in imposing a $100 public defender fee without giving Gedehomme an opportunity to request a hearing, and instructing that - 3 - "[t]he court may reimpose the $100 public defender fee but o…
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Crowder v. State, 313 So. 3d 704 (Fla. 2d DCA 2020)…ee. See Vandawalker v. State, No. 2D18-4977, 2020 WL 5986000, *1 (Fla. 2d DCA Oct. 9. 2020); Jenkins v. State, 45 Fla. L. Weekly D1373, D1373 (Fla. 2d DCA June 5, 2020); Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018); Gedehomme v. State, 160 So. 3d 533, 534 (Fla. 2d DCA 2015); Neal v. State, 62 So. 3d 1277, 1277-78 (Fla. 2d DCA 2011). However, the improper imposition of a public defender fee "does not constitute fundamental error" but rather is a sentencing error that should be raised in a motion…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Walden v. State, 905 So. 2d 1045 (Fla. 1st DCA 2005)
- McMILLAN v. State, 8 So. 3d 1237 (Fla. 2d DCA 2009)
- Pifer v. State, 59 So. 3d 225 (Fla. 2d DCA 2011)
- Harvin v. State, 905 So. 2d 269 (Fla. 2d DCA 2005)
- Coffelt v. State, 905 So. 2d 269 (Fla. 2d DCA 2005)
- Acie Warren Benson v. Eugenie M. Fisher, 59 So. 3d 225 (Fla. 3d DCA 2011)