JAMES M. CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court struck appellant's Anders brief after discovering multiple sentencing errors on the face of the record, including improper imposition of a discretionary fine as a lump sum, a public defender fee imposed without notice or opportunity to be heard, and a discrepancy between the oral pronouncement and written judgment of total fines and costs. The court ordered the filing of a Rule 3.800(b)(2) motion in the lower court to correct these errors.
The appellate court held that the trial court committed multiple sentencing errors: (1) discretionary fines and corresponding surcharges cannot be imposed as a lump sum; (2) public defender fees exceeding the $100 statutory minimum require notice and opportunity to be heard; and (3) discrepancies between oral pronouncement and written judgment constitute illegal sentences requiring correction.
[1] A court must strike a discretionary fine and its corresponding surcharge when imposed as a lump sum.
[2] A court must provide a defendant notice and an opportunity to be heard before imposing a public defender fee greater than the statutory minimum.
Previewing 2 of 5 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“This Court is required to perform an independent review "to discover any errors apparent on the face of the record."”
Establishes the standard for appellate review of sentencing even when counsel files an Anders brief indicating no meritorious issues.
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Join FLexlaw to unlock all legal intelligenceJames M. Clark was sentenced and received multiple fines, fees, costs, and surcharges. The trial court imposed all fines as a lump sum including a dis…
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ORDER STRIKING ANDERS BRIEF
Appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This Court is required to perform an independent review “to discover any errors apparent on the face of the record.” State v. Causey, 503 So.2d 321, 322 (Fla. 1987). It appears the face of this record reveals multiple sentencing errors.
First, the court imposed all fines, fees, costs, and surcharges as a lump sum, including a discretionary fine pursuant to section 775.083(1), Florida Statutes, and the corresponding surcharge. See Trusty v. State, 210 So.3d 758, 760 (Fla. 1st DCA *11272017) (striking discretionary fine and corresponding surcharge because court ordered as a lump sum). Second, the court imposed a $300 public defender fee without providing Appellant notice or an opportunity to be heard on that fee. See id. (striking public defender fee greater than the $100 statutory minimum because for fees greater than the minimum, the court “is required to give the defendant notice and an opportunity to be heard”). Third, there is a discrepancy between the court’s oral pronouncement of the total amount of fines, fees, and costs and the total listed in Appellant’s written judgment and sentence. See Ramos v. State, 156 So.3d 591, 591-92 (Fla. 1st DCA 2015) (mem.) (explaining “a discrepancy between the total amount orally announced and the total reflected in the written judgment and sentence” is a sentencing error); Whitney v. State, 108 So.3d 1157, 1157-58 (Fla. 1st DCA 2013) (explaining a written sentence that differs from the oral pronouncement is an illegal sentence). .
Accordingly, on the Court’s own motion and pursuant to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the initial brief filed February 17, 2017, is stricken in order to permit the filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Counsel for Appellant shall file the motion with the lower tribunal within twenty days of the date of this order, and the lower tribunal is directed to resolve' the motion in accordance with rule 3.800(b)(2)(B). The clerk of the lower tribunal shall thereafter transmit a supplemental record on appeal pursuant to Florida Rule of Appellate Procedure 9.140(f)(6), and counsel for Appellant shall file an amended initial brief within twenty days following transmittal of the supplemental record. See Adams v. State, 197 So.3d 641, 642 (Fla. 1st DCA 2016).
WOLF and ROWE, JJ., and GRIFFIS III, STANLEY H., ASSOCIATE JUDGE, CONCUR.
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Norris Hubbard, JR. v. State, 248 So. 3d 177 (Fla. 2d DCA 2018)…parent on the face of the record"). Our review reveals a sentencing error apparent on the face of the record. Accordingly, we strike counsel's brief under the authority of Florida Rule of Appellate Procedure 9.140(g)(2)(B). See Clark v. State, 223 So. 3d 1126, 1126-27 (Fla. 1st DCA 2017) (striking Anders brief pursuant to rule 9.140(g)(2)(B) and directing appellate counsel to file motion to correct sentencing error upon court's discovery of "multiple sentencing errors"); K.O. v. State, 228 So. 3d 162,…
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Owens v. State (Fla. 1st DCA 2021)…tation of the record. Counsel for Appellant shall file the motion with the trial court within twenty days. Counsel for Appellant shall file an appropriate brief within twenty days following transmittal of the supplemental record. See Clark v. State, 223 So. 3d 1126 (Fla. 1st DCA 2017) (listing possible sentencing errors in Anders appeal, striking Anders brief, and permitting counsel to file 3.800(b)(2) motion in trial court); Adams v. State, 197 So. 3d 641 (Fla. 1st DCA 2016) (same). KELSEY, M.K. THOMAS, and…
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Bettie Jo Grimes v. State (Fla. 1st DCA 2023)…nal shall then transmit a supplemental record on appeal pursuant to Florida Rule of Appellate Procedure 9.140(f)(6). Counsel shall file an amended initial brief within twenty days following transmittal of the supplemental record. See Clark v. State, 223 So. 3d 1126, 1126–27 (Fla. 1st DCA 2017). KELSEY, WINOKUR, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jess…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Merriex v. State, 210 So. 3d 758 (Fla. 1st DCA 2017)
- Ramos v. State, 156 So. 3d 591 (Fla. 1st DCA 2015)
- Adams v. State, 197 So. 3d 641 (Fla. 1st DCA 2016)
- Whitney v. State, 108 So. 3d 1157 (Fla. 1st DCA 2013)
- Trusty v. State, 210 So. 3d 758 (Fla. 1st DCA 2017)