Brown v. State

407 So. 2d 289, 1981 Fla. App. LEXIS 21832

Opinion

PER CURIAM.

The judgment and sentence is affirmed. However, in view of the fact that appellant was insolvent, the trial court erred in assessing him costs in the amount of $2.00 and requiring him to pay $10.00 to the crime compensation fund. See Brown v. State, 400 So.2d 510 (Fla. 2nd DCA 1981). The issue of whether appellant’s sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981) is raised for the first time on appeal. Because Villery suggests that our supreme court contemplated that this issue be brought to the attention of the trial court in the first instance, we do not consider it on appeal.

Accordingly, the judgment and sentence is affirmed. That portion of the order assessing court costs and requiring appellant to pay into the crime compensation fund is stricken. This affirmance is without prejudice to appellant’s raising the Villery issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.