Martinez-Button v. State

District Court of Appeal of Florida

Martinez-Button v. State

681 So. 2d 1184, 1996 Fla. App. LEXIS 10779, 1996 WL 592696

CourtDistrict Court of Appeal of Florida

DecidedOctober 16, 1996

DocketNo. 94-02127

StatusPublished

This text of 681 So. 2d 1184 (Martinez-Button 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

Martinez-Button v. State, 681 So. 2d 1184, 1996 Fla. App. LEXIS 10779, 1996 WL 592696 (Fla. Ct. App. 1996).

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Opinion

CAMPBELL, Acting Chief Judge.

Appellant, Rosa Martinez-Button, challenges the judgment and sentence of the trial court. She raises three issues on appeal. She first argues that the trial court prevented her from testifying in her own defense. We find no merit in this argument and affirm her conviction and sentence.

We find merit, however, in her second argument that the trial court erred in imposing $265 in court costs and $130 in costs of prosecution. Although the trial court announced the court costs in open court, there was no statutory authority cited supporting the assessment. They are, therefore, stricken. See Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994); Brown v. State, 506 So.2d 1068 (Fla. 2d DCA), rev. denied, 515 So.2d 229 (Fla.1987). We also strike the costs of prosecution since the state failed to prove the actual amount of the cost and the trial court failed to consider appellant’s ability to pay before imposing them. See Sutton; Tennie v. State, 593 So.2d 1199 (Fla. 2d DCA 1992). On remand, the state may seek to reimpose these costs in a manner consistent with the authority cited in this opinion.

Finally, appellant asserts error in the trial court’s failure to orally pronounce at sentencing probation conditions four and seven relating to alcohol and possession of weapons. These conditions are among those set forth in Rule 3.986(e), Florida Rule of Criminal Procedure (1994) and, therefore, need not be orally pronounced. See State v. Hart, 668 So.2d 589 (Fla.1996).

Affirmed in part, reversed in part and remanded.

BLUE and FULMER, JJ., concur.

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CAMPBELL, Acting Chief Judge.

Appellant, Rosa Martinez-Button, challenges the judgment and sentence of the trial court. She raises three issues on appeal. She first argues that the trial court prevented her from testifying in her own defense. We find no merit in this argument and affirm her conviction and sentence.

We find merit, however, in her second argument that the trial court erred in imposing $265 in court costs and $130 in costs of prosecution. Although the trial court announced the court costs in open court, there was no statutory authority cited supporting the assessment. They are, therefore, stricken. See Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994); Brown v. State, 506 So.2d 1068 (Fla. 2d DCA), rev. denied, 515 So.2d 229 (Fla.1987). We also strike the costs of prosecution since the state failed to prove the actual amount of the cost and the trial court failed to consider appellant’s ability to pay before imposing them. See Sutton; Tennie v. State, 593 So.2d 1199 (Fla. 2d DCA 1992). On remand, the state may seek to reimpose these costs in a manner consistent with the authority cited in this opinion.

Finally, appellant asserts error in the trial court’s failure to orally pronounce at sentencing probation conditions four and seven relating to alcohol and possession of weapons. These conditions are among those set forth in Rule 3.986(e), Florida Rule of Criminal Procedure (1994) and, therefore, need not be orally pronounced. See State v. Hart, 668 So.2d 589 (Fla.1996).

Affirmed in part, reversed in part and remanded.

BLUE and FULMER, JJ., concur.

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681 So. 2d 1184, 1996 Fla. App. LEXIS 10779, 1996 WL 592696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-button-v-state-fladistctapp-1996.

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