Herman v. State

District Court of Appeal of Florida

Herman v. State

696 So. 2d 796, 1997 Fla. App. LEXIS 1032, 1997 WL 61029

CourtDistrict Court of Appeal of Florida

DecidedFebruary 14, 1997

DocketNos. 96-01283, 96-02045

StatusPublished

This text of 696 So. 2d 796 (Herman 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

Herman v. State, 696 So. 2d 796, 1997 Fla. App. LEXIS 1032, 1997 WL 61029 (Fla. Ct. App. 1997).

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Opinion

PER CURIAM.

Richard Herman appeals from an order denying his motion for posteonviction relief and a final judgment assessing attorney’s fees and costs. We affirm the order denying posteonviction relief, but strike the final judgment assessing fees and costs because Herman was not given an opportunity to be heard concerning the amount of the fee assessment.

Herman filed a motion for posteonviction relief alleging ineffective assistance of counsel on August 31, 1995. The trial court appointed Special Public Defender Jeffery King to represent Herman in proceedings on the motion. Herman’s motion was ultimately denied as untimely, and King petitioned the court for attorney’s fees and costs. By order dated April 9, 1996, the trial court assessed attorney’s fees and costs in the amount of $2,936.33.

In a pleading dated April 19, 1996, Herman objected to the assessment and requested a hearing. The trial court set the matter to be heard on May 16, 1996. Having no notice of the scheduled hearing, and presumably in an effort to avoid filing an untimely appeal, Herman filed his notice of appeal in this court on May 10, 1996. The trial court subsequently cancelled the hearing on attorney’s fees, opining it had no jurisdiction to hear the matter once the notice of appeal was filed.

Section 27.56(7), Florida Statutes (1995), provides that a defendant must be given adequate notice and an opportunity to be heard on a trial court’s determination of attorney’s fees and costs. See also Jones v. State, 623 So.2d 627 (Fla. 5th DCA 1993) and Florida Rule of Criminal Procedure 3.720(1),(2). Here, the record fails to show that Herman received notice of King’s request for attorney’s fees and costs or that he was afforded an opportunity to be heard on the issue. We, therefore, strike the final judgment assessing attorney’s fees and costs without prejudice to be reimposed on remand after compliance with section 27.56(7).

Affirmed in part; final judgment assessing attorney’s fees and costs stricken; remanded.

THREADGILL, C.J., and PARKER and QUINCE, JJ., concur.

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PER CURIAM.

Richard Herman appeals from an order denying his motion for posteonviction relief and a final judgment assessing attorney’s fees and costs. We affirm the order denying posteonviction relief, but strike the final judgment assessing fees and costs because Herman was not given an opportunity to be heard concerning the amount of the fee assessment.

Herman filed a motion for posteonviction relief alleging ineffective assistance of counsel on August 31, 1995. The trial court appointed Special Public Defender Jeffery King to represent Herman in proceedings on the motion. Herman’s motion was ultimately denied as untimely, and King petitioned the court for attorney’s fees and costs. By order dated April 9, 1996, the trial court assessed attorney’s fees and costs in the amount of $2,936.33.

In a pleading dated April 19, 1996, Herman objected to the assessment and requested a hearing. The trial court set the matter to be heard on May 16, 1996. Having no notice of the scheduled hearing, and presumably in an effort to avoid filing an untimely appeal, Herman filed his notice of appeal in this court on May 10, 1996. The trial court subsequently cancelled the hearing on attorney’s fees, opining it had no jurisdiction to hear the matter once the notice of appeal was filed.

Section 27.56(7), Florida Statutes (1995), provides that a defendant must be given adequate notice and an opportunity to be heard on a trial court’s determination of attorney’s fees and costs. See also Jones v. State, 623 So.2d 627 (Fla. 5th DCA 1993) and Florida Rule of Criminal Procedure 3.720(1),(2). Here, the record fails to show that Herman received notice of King’s request for attorney’s fees and costs or that he was afforded an opportunity to be heard on the issue. We, therefore, strike the final judgment assessing attorney’s fees and costs without prejudice to be reimposed on remand after compliance with section 27.56(7).

Affirmed in part; final judgment assessing attorney’s fees and costs stricken; remanded.

THREADGILL, C.J., and PARKER and QUINCE, JJ., concur.

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696 So. 2d 796, 1997 Fla. App. LEXIS 1032, 1997 WL 61029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-v-state-fladistctapp-1997.

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