Nylen v. State

707 So. 2d 409, 1998 Fla. App. LEXIS 2624, 1998 WL 115860

• Court: District Court of Appeal of Florida
• Decided: March 18, 1998
• Docket: No. 97-00160
• Status: Published

Opinion

WHATLEY, Judge.

Shawn Nylen appeals his conviction and sentence for fleeing to elude a law enforcement officer. He contends that the statute making fleeing to elude a felony, § 316.1935(2), Florida Statutes (1995), is unconstitutionally vague. As Nylen himself admits, this court has addressed this issue in State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996), and found the statute constitutional as applied to facts such as those in this case where the defendant led law enforcement officers on a chase at speeds of up to 100 m.p.h. for ten to fifteen minutes. Accordingly, we affirm Nylen’s conviction.

Nylen also contends that the trial court improperly imposed certain costs. We agree. As the State concedes, Nylen’s judgment erroneously requires payment of $232.38 pursuant to section 775.083, plus a surcharge of $11.62 pursuant to section 960.25, because the trial court did not pronounce the imposition of these discretionary costs at sentencing. Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995). In addition, Nylen’s judgment erroneously requires payment of $100 as a “DWI requirement” and $35 pursuant to an administrative order. These discretionary costs were neither pronounced at sentencing nor supported by proper statutory authority. Id. Accordingly, we direct the trial court to strike the costs enumerated in this paragraph upon remand. We note that the order of probation in this case contains a condition requiring the payment of $500 in court costs. Upon the striking of the enumerated costs, Nylen will be responsible for a total of $118 in costs.¹ This change on the face of the judgment must be reflected on the probation order for the sake of consistency and the protection of Nylen.

Affirmed in. part, reversed in part, and remanded with directions.

FRANK, AiC.J., and PATTERSON, J., concur.

1 . We note that the costs reflected on Nylen’s judgment total $497;' not $500 as the probation orders states. Thus, Nylen will be responsible for $118 in costs, not $121, upon the striking of the costs enumerated in this opinion.