DeSALVO v. STATE (2013)

Appellant was convicted of home invasion robbery with a firearm and sentenced to 10 years in prison. Appellate counsel filed an Anders¹ brief and, after our independent review of the record, we find no reversible error in Appellant's judgment or his 10–year prison sentence. We do, however, find merit in Appellant's claim that his judgment and sentence contains several erroneously imposed costs.

Appellant preserved this claim through a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court timely ruled on the motion and correctly found several costs to have been erroneously imposed.² However, the court did not direct the clerk to strike these costs, nor does the record contain a corrected judgment and sentence without these costs. Accordingly, we reverse the imposition of these costs and remand for the trial court to enter a corrected judgment and sentence in conformance with the order on Appellant's rule 3.800(b)(2) motion.

On remand, the trial court may reimpose the stricken fine, surcharges, and indigent legal assistance fees after following the appropriate procedures, see Harris v. State, 100 So.3d 245, 246 (Fla. 1st DCA 2012) (indigent legal assistance fee); Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012) (discretionary fines and surcharges), but the court may not reimpose the stricken investigative costs because they were not requested by the State.³ See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011); but see Love v. State, 992 So.2d 824 (Fla. 2d DCA 2008). If the trial court elects not to reimpose the stricken fine, surcharges, and fees, Appellant need not be present for the entry of the corrected judgment and sentence. See Kirkland v. State, 2013 WL 11876 (Fla. 1st DCA Jan.3, 2013).

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

PER CURIAM.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.