Maxwell v. State

492 So. 2d 841, 11 Fla. L. Weekly 1793, 1986 Fla. App. LEXIS 9376

Opinion

ORFINGER, Judge.

The defendant appeals from the summary denial of a motion to correct an illegal sentence. Fla.R.Crim.P. 3.850. Specifically, defendant contends that because he was declared indigent by the trial court, he should not have been assessed $200 in court costs, but instead, should have been permitted to perform community service in lieu of such costs. See § 27.3455(1), Fla. Stat. (1985). The record before us does not demonstrate that defendant is not entitled to the relief he claims. On the contrary, the record before us appears to support defendant’s contention that he is indigent and therefore should have been required to perform a term of community service in lieu of being assessed with these costs.

We therefore remand this cause to the trial court with directions to either correct the sentence or to attach those portions of the record which demonstrate that after proper notice and an opportunity to be heard on the issue, defendant was determined not to be indigent for the purpose of assessment of costs. See Jenkins v. State, 444 So.2d 947 (Fla.1984); Haynes v. State, 486 So.2d 77 (Fla.2d DCA 1986).

REMANDED with directions.

COBB and DAUKSCH, JJ., concur.