County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing discretionary fees without informing Appellant she had a right to a hearing to contest the amount. Reversed and remanded with directions.  Walsh v. State, No. CRC0806864CFAWS, (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

                             

 

REGINA RENE WALSH,                         

          Appellant,

 

 

v.                                                                   UCN:            512008CF006864A000WS

                                                                      Appeal No.    CRC08-06864CFAWS

                                                                      Lower No.     08-592MMAWS

STATE OF FLORIDA,

          Appellee.

__________________________________/

 

Appeal from Pasco County Court

 

County Judge Marc Salton  

 

Lynda B. Barack, Esq. 

for Appellant

 

Office of the State Attorney

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 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.