JACOB HORNSTRA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jacob Hornstra appeals the denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850, challenging his conviction for lewd or lascivious molestation and solicitation. The appellate court affirms the denial of three claims but reverses and remands claim 4, which alleges ineffective assistance of counsel for failing to challenge the imposition of incarceration costs.
The court reversed the dismissal of claim 4, holding that counsel's failure to challenge the imposition of costs can serve as a basis for postconviction relief and that Hornstra sufficiently identified the costs he wished to challenge by explicitly referencing costs of incarceration and alleging failure to cite statutory authority. The postconviction court should have permitted amendment rather than dismissal and must either attach records conclusively refuting the claim or hold an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on a failure to object to the imposition of costs can serve as a basis for postconviction relief.
[2] The statutory authority for all costs imposed must be cited in the written order.
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Join FLexlaw to unlock all legal intelligence“Counsel's failure to challenge the imposition of costs can serve as a basis for postconviction relief.”
Establishes that ineffective assistance claims regarding failure to challenge costs are cognizable in postconviction relief.
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Join FLexlaw to unlock all legal intelligenceIn December 2010, Hornstra pleaded no contest to lewd or lascivious molestation of a child less than twelve years of age and lewd or lascivious solici…
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Jacob Hornstra appeals the postconviction court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of claims 1 through 3 without further discussion. However, we reverse and remand the postconviction court’s dismissal of claim 4 with instructions to either attach records conclusively refuting the claim or hold an evidentiary hearing.
In December 2010, Hornstra pleaded no contest to lewd or lascivious molestation of a child less than twelve years of age and lewd or lascivious solicitation. The trial court sentenced Hornstra to concurrent terms of five years’ incarceration, suspended upon completion of ten years of sex offender probation. In May 2015, after Hornstra admitted to violating his probation, the trial court imposed concurrent sentences of five years’ incarceration.
In October 2016, Hornstra filed the instant rule 3.850 motion. In claim 4, Horns-tra alleged that his trial counsel provided ineffective assistance by failing to object to the imposition of the costs of incarceration. The postconviction court dismissed this claim as facially insufficient, reasoning that Hornstra “fail[ed] to identify the costs for which the trial counsel should have objected.” The court explained that its dismissal was without prejudice to Hornstra’s right to address the issue through a Florida Rule of Criminal Procedure 3.800(b) motion.
We find that the postconviction court incorrectly dismissed claim 4 on the basis that Hornstra failed to identify the costs he wished to challenge. Counsel’s failure to challenge the imposition of costs can serve as a basis for postconviction relief. See, e.g., Boyington v. State, 125 So.3d 327, 328 (Fla. 1st DCA 2013) (finding appellate counsel ineffective for not filing rule 3.800 motion challenging lump sum fines and costs). In his motion, Hornstra explicitly referenced the costs of incarceration. Hornstra alleged, inter alia, that trial counsel provided ineffective assistance by not challenging the trial court’s failure to cite any statutory authority for the imposition of costs in its written order. See Kirby v. State, 695 So.2d 889, 890 (Fla. 2d DCA 1997) (“The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” (citations omitted)). It is unclear how Hornstra could have more specifically identified the cost he sought to challenge. Moreover, we cannot determine whether the trial court improperly assessed costs of incarceration because the postconviction court did not attach the order imposing fees and costs to its order denying Hornstra’s motion for postconviction relief.
We also find that the postconviction court incorrectly dismissed claim 4 for *981Hornstra to raise the issue through a rule 3.800(b) motion. Because the court deemed claim 4 facially insufficient, it should have permitted Hornstra to amend the claim rather than dismissing it. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Nonetheless, having determined that claim 4 contained a sufficient basis for relief, we reverse the dismissal of claim 4 and remand for the postconviction court to either attach records conclusively refuting the claim or hold an evidentiary hearing.
AFFIRMED in part; REVERSED in part; and REMANDED with Instructions.
PALMER and EVANDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Garrett v. State, 262 So. 3d 267 (Fla. 5th DCA 2019)…failing to cite statutory authority for the same. We agree and reverse the order imposing costs. “The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” Hornstra v. State, 218 So. 3d 979, 980 (Fla. 5th DCA 2017) (quoting Kirby v. State, 695 So. 2d 889, 890 (Fla. 2d DCA 1997)). We therefore reverse the order of costs and remand so that the State “may seek reimposition” of costs. Kirby, 695 So. 2d at 890. We otherwise affirm. REVER…
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Garrett v. State (Fla. 5th DCA 2019)…failing to cite statutory authority for the same. We agree and reverse the order imposing costs. “The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” Hornstra v. State, 218 So. 3d 979, 980 (Fla. 5th DCA 2017) (quoting Kirby v. State, 695 So. 2d 889, 890 (Fla. 2d DCA 1997)). We therefore reverse the order of costs and remand so that the State “may seek reimposition” of costs. Kirby, 695 So. 2d at 890. We otherwise affirm. REVER…
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Garrett v. State (Fla. 5th DCA 2019)…failing to cite statutory authority for the same. We agree and reverse the order imposing costs. “The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” Hornstra v. State, 218 So. 3d 979, 980 (Fla. 5th DCA 2017) (quoting Kirby v. State, 695 So. 2d 889, 890 (Fla. 2d DCA 1997)). We therefore reverse the order of costs and remand so that the State “may seek reimposition” of costs. Kirby, 695 So. 2d at 890. We otherwise affirm. REVER…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Kirby v. State, 695 So. 2d 889 (Fla. 2d DCA 1997)
- Boyington v. State, 125 So. 3d 327 (Fla. 1st DCA 2013)
- Mobley v. State, 125 So. 3d 327 (Fla. 5th DCA 2013)