Kirby v. State

665 So. 2d 299, 1995 Fla. App. LEXIS 12640, 1995 WL 722923

Opinion

WHATLEY, Judge.

James Henry Kirby appeals his convictions and sentences for possession of cocaine and possession of paraphernalia. We affirm his convictions without discussion; however, we remand for resentencing and strike certain costs.

Kirby argues, and the state agrees, that Kirby’s sentence must be vacated and the cause remanded for the trial court to conform the written sentencing order to its oral pronouncement. See Nisbett v. State, 660 So.2d 813 (Fla. 2d DCA 1995).

Further, we strike $2 in court costs imposed pursuant to section 943.25(13), Florida Statutes (1993), because the cost is discretionary, and it was not orally announced at sentencing. We also strike the “cost/fine” of $33 that references no statutory authority. Finally, we strike the $100 assessment for the F.D.L.E. lab fee, because at the sentencing there was no request for such cost by the agency nor was there documentation supporting the cost. On remand, the state may seek to reimpose appropriate costs in accordance with Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995).

Accordingly, we affirm the convictions, but strike certain costs and remand the case for the trial court to conform the written sentencing order to the orally pronounced sentences.

RYDER, A.C.J., and LAZZARA, J., concur.