County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing discretionary fees without informing Appellant he had a right to a hearing to contest the amount. Since the trial court held corrected these errors within a reasonable amount of time, it still had jurisdiction even though more than sixty days had passed from Appellant’s motion to correct sentencing error. Dismissed as moot.  Golden v. State, No. CRC090905357CFAWS, (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

                                                                     

 

TROY KENNETH GOLDEN,                             

          Appellant,

 

 

v.                                                                   UCN:  512009CF005357A000WS

                                                                      Appeal No.   CRC0905357CFAWS

                                                                      Lower No.    09-3785MMAWS

STATE OF FLORIDA,

          Appellee.

_______________________________/

 

Appeal from Pasco County Court

 

County Judge Anne Wansboro  

 

Thomas McLaughlin, Esq. 

for Appellant

 

Office of the State Attorney

for Appellee

 

 

 

ORDER AND OPINION

 

          Appellant challenges the $50 Public Defender attorney fee per Florida Statutes section 938.29 and a $50 Indigency fee per Florida Statutes section 27.52(1)(c).  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 deemed denied as the trial court did not rule on the 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.

          Appellant argues that the trial court improperly imposed Public Defender fees when the Public Defender advised the trial court that he had no prior contact with Appellant.  The Public Defender withdrew on the case prior to Appellant entering his guilty plea and being sentenced.  Florida Rule of Criminal Procedure 3.720(d)(1) provides that trial courts are required to give notice at sentencing of a defendant’s right to contest the amount of imposed attorney’s fees.  See Hayes v. State, 957 So. 2d 97 (Fla. 2d DCA 2007).  The record does not indicate that the trial court informed Appellant at sentencing of his right to a hearing to contest the fees.  Del Valle v. State, 26 So. 3d 650 (Fla. 2d DCA 2010); Hayes v. State, 957 So. 2d 97 (Fla. 2d DCA 2007).  Although Appellant further contends that he should not have to pay the application fee, that minimum fee of $50 is mandatory pursuant § 27.52(1)(c), Fla. Stat. (2009), and this Court cannot find any grounds to contest that amount.         

          During the pendency of this appeal, on April 15, 2010, the trial court corrected the error.  A hearing was held wherein the trial court determined what amount was reasonable and struck the $50 public defender fee for any services that might have been rendered.  Although sixty days had passed since Appellant filed his motion to correct sentencing error, the trial court still had jurisdiction because it ruled on the motion within a reasonable amount of time.  Schlabach v. State, 35 Fla. L. Weekly S 263 (Fla. May 20, 2010).  Any errors in sentencing have been properly corrected.           Therefore, this appeal is

DISMISSED AS MOOT.

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.