CURAY DAVIS, JR. v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 3, 2019
• Docket: 18-0892
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

CURAY J. DAVIS, ) a/k/a CURAY JEROME DAVIS, ) ) Appellant, ) ) v. ) Case No. 2D18-892 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed April 3, 2019.

Appeal from the Circuit Court for Polk County; William D. Sites, Judge.

Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

VILLANTI, Judge.

Curay Jerome Davis challenges the trial court's imposition of a $500 fine

and 5% surcharge. Davis properly preserved this issue by filing a motion to correct

sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The State

responded by arguing that the fine was a mandatory fine, relying on section 893.13(1)(d)(3), Florida Statutes (2017). But the statute did not factually apply to

Davis's case because he was not charged with the sale of a controlled substance within

1000 feet of a proscribed location. Rather, the fine was discretionary and the trial court

was thus required to pronounce the statutory authority for the fine, section 775.083,

Florida Statutes (2017). See Perdue v. State, 17 So. 3d 1283 (Fla. 2d DCA 2009)

(holding that the trial court erred in failing to orally pronounce the statutory authority for

the discretionary $525 fines and surcharges).

Because the trial court erred by failing to orally pronounce the statutory

authority, we remand for entry of a corrected judgment striking the $500 fine and 5%

surcharge. In all other respects, we affirm.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

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