County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing Public Defender fees without informing Appellant he had a right to a hearing to contest the amount. Reversed and remanded with directions. Swart v. State, No. CRC0802412CFAES, (Fla. 6th Cir.App.Ct. April 20, 2010).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

JAY KEVIN SWART,

Appellant,

UCN: 512008CF002412A000ES

v. Case No: CRC0802412CFAES

Lower No: 07-2212/2213SLBTES

STATE OF FLORIDA,

Appellee.

___________________________/

Appeal from Pasco County Court

County Judge William Sestak

Lynda B. Barack, Esq.

for Appellant

Gerald Cruz, A.S.A.

for Appellee

ORDER AND OPINION

Appellant challenges the $300 Public Defender attorney fee per Florida Statutes section 938.29 and a $40 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.

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. Since the trial court erred by not informing Appellant of this right to contest or object to the amount of the lien from these fees, this Court reverses and directs the lower court to strike the fees. Del Valle v. State, 35 Fla. L. Weekly D 226 (Fla. 2d DCA January 22, 2010); Hayes v. State, 957 So. 2d 97 (Fla. 2d DCA 2007).

On remand, Appellant is given thirty days from the issuance of the mandate to file a written objection to the amount of the 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, 35 Fla. L. Weekly D 183; Webster v. State, 998 So. 2d 655, 656 (Fla. 2d DCA 2008).

If Appellant files a timely objection, the trial court shall make the necessary findings in determining what amount was reasonable for the Public Defender fees at a hearing on the matter. The minimum fee of $40 is mandatory pursuant § 27.52(1)(c), Fla. Stat. (2008), and this Court cannot find any grounds to contest that amount. The maximum, however, shall be determined by whatever the trial court finds reasonable by the evidence presented, even if it exceeds the original amount imposed. Although Appellant has the right to contest this Public Defender attorney fee, he should be aware that doing so may result in a having to pay a higher amount. Therefore, it is

REVERSED AND REMANDED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 20^TH day of April 2010.

Original order entered on April 20, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.