Lundy v. State

District Court of Appeal of Florida

Lundy v. State

559 So. 2d 1308, 1990 Fla. App. LEXIS 3046, 1990 WL 57812

CourtDistrict Court of Appeal of Florida

DecidedMay 4, 1990

DocketNo. 87-01713

StatusPublished

Cited by3 cases

This text of 559 So. 2d 1308 (Lundy 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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Lundy v. State, 559 So. 2d 1308, 1990 Fla. App. LEXIS 3046, 1990 WL 57812 (Fla. Ct. App. 1990).

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Opinion

CAMPBELL, Chief Judge.

Appellant, Richard D. Lundy, appeals his judgment and sentence resulting from his conviction for grand theft. We find no error in regard to his conviction and, therefore, affirm his conviction and sentence, with the exception of costs imposed.

We do find, however, that the trial judge erred in imposing costs without affording appellant his due process rights of notice and an opportunity to be heard in regard to the imposition of those costs. Mays v. State, 519 So.2d 618 (Fla.1988); Jenkins v. State, 444 So.2d 947 (Fla.1984). We decline to readdress and certify this due process issue to the Florida Supreme Court for reconsideration in light of recent federal decisions on this question. See United States v. Cooper, 870 F.2d 586 (11th Cir.1989); United States v. Rivera-Velez, 839 F.2d 8 (1st Cir.1988); United States v. Pagan, 785 F.2d 378 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986). We find the Florida Supreme Court’s decision in Jenkins and its progeny to be unequivocal and not the proper subject of a renewed certification from this court.

We, therefore, strike the imposition of costs and remand to the trial court, which may reimpose costs if the appropriate notice and opportunity to be heard is afforded appellant.

RYDER and PATTERSON, JJ., concur.

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CAMPBELL, Chief Judge.

Appellant, Richard D. Lundy, appeals his judgment and sentence resulting from his conviction for grand theft. We find no error in regard to his conviction and, therefore, affirm his conviction and sentence, with the exception of costs imposed.

We do find, however, that the trial judge erred in imposing costs without affording appellant his due process rights of notice and an opportunity to be heard in regard to the imposition of those costs. Mays v. State, 519 So.2d 618 (Fla.1988); Jenkins v. State, 444 So.2d 947 (Fla.1984). We decline to readdress and certify this due process issue to the Florida Supreme Court for reconsideration in light of recent federal decisions on this question. See United States v. Cooper, 870 F.2d 586 (11th Cir.1989); United States v. Rivera-Velez, 839 F.2d 8 (1st Cir.1988); United States v. Pagan, 785 F.2d 378 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986). We find the Florida Supreme Court’s decision in Jenkins and its progeny to be unequivocal and not the proper subject of a renewed certification from this court.

We, therefore, strike the imposition of costs and remand to the trial court, which may reimpose costs if the appropriate notice and opportunity to be heard is afforded appellant.

RYDER and PATTERSON, JJ., concur.

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559 So. 2d 1308, 1990 Fla. App. LEXIS 3046, 1990 WL 57812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundy-v-state-fladistctapp-1990.

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