County Criminal Court: CRIMINAL LAW – Sentencing
– The trial court erred in imposing discretionary costs and fees without
informing Appellant he had a right to a hearing to contest the amount. Reversed
and remanded with directions. Folts v. State, No.
CRC0900801CFAWS, (Fla. 6th Cir.App.Ct. July 19,
2010).
NOT FINAL UNTIL TIME
EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN
THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PASCO
COUNTY, FLORIDA
APPELLATE DIVISION
BRUCE FOLTS,
Appellant,
v. UCN: 512009CF000801A000WS
Appeal
No. CRC09-00801-CFAWS
Lower No. 08-4704MMAWS
STATE
OF FLORIDA,
Appellee.
_____________________________/
Appeal
from Pasco County Court
County
Judge Marc Salton
Thomas
McLaughlin, Esq.
for Appellant
Joseph Lawhorne, A.S.A.
for Appellee
ORDER AND OPINION
Appellant challenges the $198 in unspecified
court costs, $200 discretionary fine, and $20 surcharge on the fine. To preserve a challenge to the fees and
costs, a defendant must first file a motion to correct sentencing error
pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Appellant filed such a motion, which was
denied. Appellant also filed an amended
motion unaware that four days prior the original
motion had been denied by a written order.
Nonetheless, the amended motion would have been deemed denied as the
trial court did not rule on the amended motion within sixty days. Fla. R. Crim. P. 3.800(b)(2)(B);
Watts v. State, 973 So. 2d 1271, 1272 (Fla. 2d DCA
2008); Webster v. State, 998 So. 2d 655, 656
(Fla. 2d DCA 2008). Therefore,
Appellant has properly preserved this issue for appellate review.
At the sentencing hearing, the trial
court orally imposed $248.00 in court costs.
Although a trial court may impose mandatory costs at sentencing without
orally announcing the statutory authority, the written order must indicate the
statutory authority for imposing such costs.
Smith v. State, 686 So. 2d 8 (Fla. 2d DCA
1996); Reyes v. State, 655 So. 2d 111 (Fla. 2d
DCA 1995). Except for $50.00, the
cost of prosecution, the trial court did not specify the statutory authorities in
the written sentencing order. Mandatory
costs can be imposed without notice; however, discretionary costs require
notice and an opportunity to object. Miller v. State, 912, So. 2d 1282
(Fla. 2d DCA 2005). It is
impossible to determine whether the remaining $198.00 consists of unidentified
mandatory costs, discretionary costs not properly specified at sentencing, or a
combination of both. Therefore, the
unidentified costs must be stricken. McGee
v. State, 963 So. 2d 931 (Fla. 2d DCA 2007). On remand, the trial court may reimpose the stricken costs if it indicates the statutory
authority, and regarding any discretionary fines or costs, Appellant must be
given notice an opportunity to object to their imposition.
The trial court also imposed a $200
discretionary fine with a $10 surcharge.
It is well settled that trial courts may not impose costs or fines
unless it is specifically authorized by statute and indicated in the written order. J.S. v. State, 920 So. 2d 752 (Fla. 5th DCA 2006); Williams v. State, 674 So.
2d 885 (Fla. 2d DCA 1996). Since the written order does not specify
under what authorities the fine or surcharges were imposed, they must be
stricken. On remand, the trial court may
reimpose any discretionary fines that are authorized
by statute with written reference to the proper statutory authorities.
Appellant is given thirty days from
the issuance of the mandate to file a written objection to the discretionary
costs or fees. McGee v. State,
963 So. 2d 931, 932 (Fla. 2d DCA 2007). If an objection is filed, the trial court
shall hold a hearing. Otherwise, if
Appellant does not timely object, the trial court shall reimpose
the lien without a hearing. See White v. State, 32
So. 3d 132 (Fla. 2d DCA 2010); Webster v. State, 998
So. 2d 655, 656 (Fla. 2d DCA 2008). In either scenario, the trial court must
provide written authority for any discretionary costs or fees that it reimposes. Therefore,
it is
REVERSED AND REMANDED.
DONE
AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 19th
day of July 2010.
Original
order entered on July 19, 2010 by Circuit Judges Stanley R. Mills, W. Lowell
Bray, Jr., and Daniel D. Diskey.