JAMES M. CLARK
v.
STATE OF FLORIDA
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James Clark appealed his sentencing order, and the appellate court, sua sponte, identified multiple sentencing errors including improper imposition of a discretionary fine as a lump sum, an unauthorized public defender fee imposed without notice, and a discrepancy between the oral and written sentences. The court struck the Anders brief and directed the trial court to address these errors through a motion under Florida Rule of Criminal Procedure 3.800(b)(2).
The appellate court held that the sentencing order contained multiple errors: (1) the discretionary fine and corresponding surcharge could not be imposed as a lump sum; (2) the $300 public defender fee exceeded the statutory minimum and required notice and an opportunity to be heard; and (3) the discrepancy between oral pronouncement and the written sentence constituted an illegal sentence that could be corrected by motion in the lower tribunal.
[1] A discretionary fine and its corresponding surcharge cannot be imposed as a lump sum.
[2] A public defender fee exceeding the statutory minimum requires notice and an opportunity for the defendant to be heard.
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Establishes the appellate court's duty under Anders to conduct independent review even when counsel files an Anders brief.
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Join FLexlaw to unlock all legal intelligenceThe trial court imposed sentence on Clark that included fines, fees, costs, and surcharges as a lump sum, including a discretionary fine under section…
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JAMES M. CLARK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D16-4773
_____________________________/ Opinion filed July 11, 2017. An appeal from an order of the Circuit Court for Calhoun County. Allen L. Register, Judge. Andy Thomas, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
ORDER STRIKING ANDERS BRIEF
PER CURIAM.
Appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (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 2017) (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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- 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)