Gibbs v. State

District Court of Appeal of Florida

Gibbs v. State

529 So. 2d 369, 13 Fla. L. Weekly 1909, 1988 Fla. App. LEXIS 3667, 1988 WL 82369

CourtDistrict Court of Appeal of Florida

DecidedAugust 11, 1988

DocketNo. 87-1768

StatusPublished

Cited by1 cases

This text of 529 So. 2d 369 (Gibbs v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gibbs v. State, 529 So. 2d 369, 13 Fla. L. Weekly 1909, 1988 Fla. App. LEXIS 3667, 1988 WL 82369 (Fla. Ct. App. 1988).

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Opinion

ZEHMER, Judge.

Steve Gibbs appeals the lower court’s denial of his motion to strike the community service portion of his sentence. According to the allegations contained in this motion, on June 12, 1987, the lower court sentenced him to three years incarceration with jail credit of 55 days. The motion further alleges that the lower court, in separate orders, ordered appellant to pay court costs pursuant to section 27.3455(1), Florida Statutes, and ordered that appellant be placed on community service in lieu of the monetary assessment. Appellant asserts as error the court’s imposition of court costs after adjudging him indigent at the time of sentencing and the court’s order that he be placed on community service in lieu of court costs.

If appellant’s allegation that he was sentenced on June 12, 1987 is accurate, the lower court should have sentenced him under the 1986 amended version of § 27.3455, which deleted the community service alternative for indigent defendants. See Sims v. State, 520 So.2d 675 (Fla. 5th DCA 1988); Hill v. State, 517 So.2d 784 (Fla. 5th DCA 1988). We cannot review this motion, however, because the record on appeal does not contain the order placing appellant on community service or the order adjudging him indigent, and because appellant did not comply with the requirements for a facially sufficient Rule 3.850, Fla.R.Crim.P. motion. See Moore v. State, 510 So.2d 1174 (Fla. 1st DCA 1987). We, therefore, affirm without prejudice to filing a proper motion.

AFFIRMED.

SMITH, C.J., and JOANOS, J., concur.

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ZEHMER, Judge.

Steve Gibbs appeals the lower court’s denial of his motion to strike the community service portion of his sentence. According to the allegations contained in this motion, on June 12, 1987, the lower court sentenced him to three years incarceration with jail credit of 55 days. The motion further alleges that the lower court, in separate orders, ordered appellant to pay court costs pursuant to section 27.3455(1), Florida Statutes, and ordered that appellant be placed on community service in lieu of the monetary assessment. Appellant asserts as error the court’s imposition of court costs after adjudging him indigent at the time of sentencing and the court’s order that he be placed on community service in lieu of court costs.

If appellant’s allegation that he was sentenced on June 12, 1987 is accurate, the lower court should have sentenced him under the 1986 amended version of § 27.3455, which deleted the community service alternative for indigent defendants. See Sims v. State, 520 So.2d 675 (Fla. 5th DCA 1988); Hill v. State, 517 So.2d 784 (Fla. 5th DCA 1988). We cannot review this motion, however, because the record on appeal does not contain the order placing appellant on community service or the order adjudging him indigent, and because appellant did not comply with the requirements for a facially sufficient Rule 3.850, Fla.R.Crim.P. motion. See Moore v. State, 510 So.2d 1174 (Fla. 1st DCA 1987). We, therefore, affirm without prejudice to filing a proper motion.

AFFIRMED.

SMITH, C.J., and JOANOS, J., concur.

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529 So. 2d 369, 13 Fla. L. Weekly 1909, 1988 Fla. App. LEXIS 3667, 1988 WL 82369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbs-v-state-fladistctapp-1988.

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