Harrison v. State

146 So. 3d 76, 2014 WL 4086561, 2014 Fla. App. LEXIS 12740
CourtDistrict Court of Appeal of Florida
DecidedAugust 20, 2014
DocketNo. 1D12-5503
StatusPublished
Cited by10 cases

This text of 146 So. 3d 76 (Harrison 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.

Bluebook
Harrison v. State, 146 So. 3d 76, 2014 WL 4086561, 2014 Fla. App. LEXIS 12740 (Fla. Ct. App. 2014).

Opinion

ON APPELLEE’S MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION OF A QUESTION OF GREAT PUBLIC IMPORTANCE

RAY, J.

The State has moved for rehearing, rehearing en banc, and certification of a question of great public importance. We grant the motion for rehearing in part, deny the motion for rehearing en banc, and grant the request to certify a question. Our previous opinion is withdrawn and the following is substituted in its place.

Terone Harrison appeals his judgment and sentence for burglary of a dwelling with person assaulted, aggravated battery with a deadly weapon, and criminal mischief. Appellate counsel filed an Anders1 brief representing that no good faith argument can be made that fundamental or reversible error occurred in the trial court, with the exception of sentencing errors that were raised in a motion to correct sentencing error and were not corrected by the trial court. Based on our full and independent review of the record, we affirm Appellant’s convictions and reverse the judgment and sentence only to the extent necessary to correct certain sentencing errors raised by Anders counsel.

I. Sentencing Errors

Appellant filed a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court erred by incorrectly indicating that the fine imposed pursuant to section 938.05, Florida Statutes, is $230.00; incorrectly indicating that the fine imposed pursuant to section 775.083(2), Florida Statutes, is $415.00; imposing a $100.00 cost of prosecution, without citing statutory authority; and imposing a $100.00 cost of defense, without citing statutory authority or informing Appellant of his right to a hearing to dispute the amount of the lien. Because the trial court did not file an order ruling on the motion within sixty days, the motion is deemed to have been denied. See Fla. R. Crim. P. 3.800(b)(2)(B). Each of these challenges is discussed in turn.

[78]*78Section 938.05(l)(a), Florida Statutes (2011), provides that anyone found guilty of any felony in Florida shall pay a $225.00 fine. The court imposed a $230.00 fine, citing this statute. We reverse and remand with instructions to reduce this assessment to $225.00 in the written judgment and sentence. See Turner v. State, 109 So.3d 276 (Fla. 1st DCA 2013).

Section 775.083(2), Florida Statutes (2011), provides that court costs shall be assessed in the amount of $50.00 for a felony. The court imposed court costs in the amount of $415.00, citing this statute. We reverse and remand for correction of the written judgment and sentence to reflect the correct statutory cost. See Z.C.B. v. State, 40 So.3d 36, 38-39 (Fla. 2d DCA 2010). If other authorized costs were consolidated in this $415.00 assessment, the trial court may re-impose the authorized sums following the appropriate procedure. See Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997).

The next series of errors asserted by Anders counsel relate to the assessment of mandatory costs without citation to statutory authority. In support of its position, Anders counsel references two decisions from our court: Fisher v. State, 697 So.2d 1291 (Fla. 1st DCA 1997), and Bradshaw v. State, 638 So.2d 1024 (Fla. 1st DCA 1994). In Fisher, we struck several costs imposed by the trial court “since no statutory authority was cited for their assessment.” 697 So.2d at 1292. In so doing, we relied upon our decision in Bradshaw, where we explained that “[i]t is improper to impose additional court costs without reference to statutory authority, or an explanation in the record, as to what the additional costs represent, which is sufficiently clear to permit a reviewing court to detemine the statutory authority for the costs.” 638 So.2d at 1025 (emphasis added). Since it is axiomatic that costs cannot be imposed in a criminal case unless authorized by statute, the record must adequately reflect the purpose of a cost to ensure meaningful appellate review.

In this case, Anders counsel acknowledges that the written judgment and sentence reflects the imposition of $100 for “cost of prosecution” and $100 for “cost of defense.” While the statutory authority for these costs is not designated, the purpose for these assessments is evident. Both costs represent the minimum costs mandated by the applicable statutes and Appellant has constructive notice of their existence. § 938.27(8), Fla. Stat. (2011) (cost of prosecution); § 938.29(l)(a), Fla. Stat. (2011) (cost of defense); State v. Beasley, 580 So.2d 139, 142 & n. 4 (Fla. 1991) (concluding that publication in Florida Statutes “gives all citizens constructive notice of the consequences of their actions,” thereby affording defendant adequate notice of the imposition of mandatory costs). Remanding for the trial court to insert a known statutory citation would be redundant and a waste of judicial time and labor. Accordingly, we find no error in the assessment of the mandatory, minimum costs of prosecution and defense, without citation to statutory authority, when it was clear from the record what those costs represent. See Keel v. State, 134 So.3d 1005 (Fla. 1st DCA 2012) (concluding that clerk of court service charge was properly imposed, in the absence of citation to authority, because written sentence clearly indicated the purpose of the mandatory fee).

The final sentencing error asserted by Anders counsel involves the trial court’s failure to inform Appellant of his right to a hearing to dispute the amount of the indigent legal assistance lien created by the imposition of the mandatory, minimum cost of defense. Section 938.29(5), Florida [79]*79Statutes (2011), specifically provides that the defendant shall receive “notice and the opportunity to be heard and offer objection” to the trial court’s determination of the value of the public defender’s services. The statute’s companion rule also requires “[njotice of the accused’s right to a hearing to contest the amount of the lien,” which notice is to be “given at the time of sentence.” Fla. R. Crim. P. 3.720(d)(1).

In its motion for rehearing, the State contends that no such warning was necessary in this case because the court imposed the minimum cost for the services of a public defender mandated by statute in all felony cases. Similar to the mandatory, minimum cost of prosecution, the State submits that the defendant has constructive notice of the cost of defense mandate, so logically, there is nothing to “hear” or “object to” where the court imposes the minimum amount. See, e.g., Hills v. State, 90 So.3d 927, 928 (Fla. 1st DCA 2012) (“The 2008 amendments to [the cost of prosecution statute] created mandatory minimum costs for the state attorney and removed the trial court’s discretion to impose these costs.”).2 The State asserts that the trial court’s obligation under section 938.29(5) to provide “notice and an opportunity to object” is triggered only when the court exercises its discretion under section 938.29(1) to impose a “higher amount upon a showing of sufficient proof of higher fees or costs incurred.”

While the State’s argument has appeal based on logic and sound legal reasoning, we are not at liberty to recede from our case law directly on point, which requires that a defendant be given the “opportunity to object” to the cost of defense, even where the mandatory, minimum amount is imposed. See, e.g., Colson v.

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Bluebook (online)
146 So. 3d 76, 2014 WL 4086561, 2014 Fla. App. LEXIS 12740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-fladistctapp-2014.