A. C.

v.

STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

A.C., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D18-1643

August 27, 2021

Appeal from the Circuit Court for Polk County; Mark H. Hofstad and Melissa Gravitt, Judges.

Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

KHOUZAM, Judge.

A.C., a juvenile, timely appeals her adjudication and sentence for petit theft of a cell phone. She raises two claims that she set forth in her two motions for correction of disposition, which were filed pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2) and were deemed denied. A.C. argues that the circuit court erred by (1) failing to make required findings before ordering restitution and (2) failing to give her notice of her right to contest the $100 public defender fee before imposing it. As to the first issue, we reverse and remand for further proceedings. As to the second issue, we affirm.

I. Restitution

A.C. argues that the trial court erred by failing to make any findings concerning what A.C. or her parent or guardian could reasonably be expected to pay or make. Section 985.437(2), Florida Statutes (2017), provides that "[w]hen restitution is ordered by the court, the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make." "Although a child need not have a present ability to pay restitution, the court must make a finding as to the juvenile's expected earning capacity prior to setting an amount for restitution." S.S. v. State, 122 So. 3d 499, 503 (Fla. 4th DCA 2013).

"In the absence of such findings, the appellate court must reverse the restitution order and remand for a hearing to determine the child's ability to pay." Id.

The State argues that this issue was not preserved for appellate review. However, A.C. sufficiently preserved this issue by raising it in a rule 8.135(b)(2) motion. See S.S., 122 So. 3d at 502 (concluding that issue of failure to make finding of ability to pay was properly preserved via the juveniles' rule 8.135(b)(2) motions); L.W. v. State, 163 So. 3d 598, 601 (Fla. 3d DCA 2015) ("L.W. did preserve the issue for appeal by informing the trial court that it was required to make a factual finding on L.W.'s reasonable ability to pay the order and also by filing his motion for postconviction relief under [rule] 8.135(b)(2)."). The State correctly concedes that if this issue was properly preserved, A.C. is entitled to remand for a new restitution hearing.

Accordingly, because the record shows that the court did not make any findings regarding expected earning capacity prior to determining the amount of restitution, we reverse and remand for a new hearing on this issue.

II. Public Defender Fee

A.C. also argues that the trial court erred by imposing the $100 public defender fee without giving her notice of her right to contest this fee when imposing it at the disposition hearing. Although this court originally reversed the imposition of the $100 public defender fee, the Florida Supreme Court has since held that "[w]hen imposing the statutory minimum, the trial court need not announce the imposition of the public defender's fee or inform the defendant of a right to contest the fee." State v. J.A.R., 318 So. 3d 1256, 1259 (Fla. 2021). Accordingly, we now affirm the imposition of the $100 public defender fee. On remand, the circuit court should reimpose the $100 public defender fee if it has not already done so. A.C. need not be present for the reimposition of the fee.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.