County Criminal Court: CRIMINAL LAW- Sentencing -trial court erred in imposing fines and costs- trial court failed to orally pronounce any citation of authority, the written judgment and order of probation -trial court erred in imposing the public defender fees without informing appellant he had the right to a hearing to contest the amount.  Affirmed in part; reversed in part Cousineau v. State, , No. 0701740CFAWS (Fla. 6th Cir. App. Ct. May 5, 2008).    

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JEFFREY COUSINEAU,     

                        Appellant,

v.

 

STATE OF FLORIDA,                                           Case No: 0701740CFAWS

                        Appellee.                                            Lower No: 05135672WTWS           

________________________/

 

Appeal from Pasco County Court

 

County Judge Marc H. Salton

 

Frank D. L. Winstead, Esq.  

for Appellant

 

Devin Jones, Esq. A.S.A. 

for Appellee

 

ORDER AND OPINION

 

THIS MATTER is before the Court on Appellant, Joseph Nunn's, appeal of the trial court's order denying a Motion to Suppress. Having reviewed the record and the briefs, this Court affirms the decision of the trial court. 

On December 6, 2005, appellant was arrested for driving under the influence. The jury unanimously found appellant guilty as charged. During sentencing, the state advised the court that this was appellants fourth DUI conviction according to his driving record. The state indicated that “[h]e had two in Michigan and then one  in Pasco County, 1999.”  The defense raised the fact that there were no certified copies from Michigan. The appellant told the court he was only aware of one DUI in Michigan and the one in Pasco. The court said it would not consider the two in Michigan because they were on the same date. The defense requested the court not consider the Michigan offenses at all  in the sentence because of the fact that no one was aware of the standard in Michigan. The defendant then interjected “it was driving under the influence, that’s all…” The judge  then reviewed the driving record, and stated he would only consider one DUI conviction in Michigan, one DUI conviction in Pasco, and this current DUI , which would therefore, be his third. The court said it would consider it to be the third, but not the fourth. The defendant then said, “Out of these, I don’t even know where he got them from, other than the ones in Florida.”

The court then adjudicated him guilty, placed the defendant on probation for a year, ordered him to pay a fine and court costs of $1445.00, and complete DUI school. His license was revoked for ten years, the vehicle he was driving was impounded for 90 days, he was sentenced to 120 days, credit for time served. The court also imposed a $240.00 public defender fees. [1]

This court finds that the trial court erred in imposing $1445.00 in fines and costs. Not only did the trial court fail to orally pronounce any citation of authority for these fines or costs during sentencing, the written judgment and order of probation filed February 7, 2007, likewise fails to reflect any statutory authority. Therefore, the imposition of the fines and costs should be deemed discretionary amounts that must be individually announced. Moreover, a defendant must have an opportunity to object to the imposition of any discretionary costs in open court, and the trial court has to assess the ability to pay such discretionary costs before they can be imposed. Reyes v. State, 655 so. 2d 111 (Fla. 2d DCA 1995).    

The trial court also erred in imposing the $240.00 public defender fees without informing appellant he had the right to a hearing to contest the amount.  Fl. R. Crim. Pro. 3.720(d)(1).

            We therefore reverse the imposition of the fines and costs, as well as the public defender fee and remand for reconsideration of the fees and costs in accordance with  statutory rules and requirements. The judgment and sentence are affirmed in all other respects.

            IT IS THEREFORE ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED IN PART, and REVERSED IN PART and remanded with directions.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  ________, 2008.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    _________________________                                                                                              Daniel D. Diskey, Circuit Judge

 

                                                                                    __________________________

                                                                                    Stanley R. Mills, Circuit Judge

 

Copies furnished to:

Frank D.L. Winstead, Esq. .

Office of the State Attorney

County Judge Marc H. Salton

 


[1] Prior to filing the initial brief, appellant filed a Motion to Correct Sentencing Errors with the trial court, but the trial court failed to rule on the motion within sixty days; and therefore, the motion was, in effect, constructively denied thereby permitting appellant to raise these matters on appeal.