HARRISON v. STATE (2014)

In this appeal pursuant to Anders v. California, 386 U.S. 738 (1967), counsel asserts several relatively minor sentencing errors appearing in the judgment for fines, costs, fees, and surcharges (the judgment). Appellant preserved this issue via a timely Florida Rule of Criminal Procedure 3.800(b)(2) motion, which is deemed to have been denied due to the trial court's failure to file an order on the motion within sixty days. See Fla. R.Crim. P. 3.800(b)(2)(B); Youman v. State, 112 So.3d 693, 694 (Fla. 1st DCA 2013). Such errors can be properly addressed in an Anders appeal. See In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991). We affirm the convictions and sentences but strike the erroneous items in the judgment and remand for correction.

Pursuant to the jury verdict, the trial court adjudicated Appellant guilty of two felonies—burglary of a dwelling with a person assaulted and battered, and aggravated battery with a deadly weapon—and criminal mischief, a misdemeanor. Section 938.05(1)(a), Florida Statutes (2011), provides that anyone found guilty of any felony in Florida shall pay a $225.00 cost. The court imposed a $230.00 cost, citing this statute. We strike this amount and remand with instructions to reduce this cost to $225.00. See Turner v. State, 109 So.3d 276 (Fla. 1st DCA 2013).

Section 775.083(2), Florida Statutes (2011), provides that court costs shall be assessed in the amount of $50.00 for a felony. The court imposed court costs in the amount of $415.00, citing this statute. We strike this erroneous amount and remand for correction of the judgment to reflect the correct statutory cost. See Z.C.B. v. State, 40 So.3d 36, 38–39 (Fla. 2d DCA 2010).

The next error relates to the cost of defense. The Office of the Public Defender, and later the Office of Regional Conflict Counsel, represented Appellant in the trial court. Section 938.29(1)(a), Florida Statutes (2011), provides that a defendant who is convicted of a criminal act and has received the assistance of either of these two offices shall be liable for payment of attorney's fees and costs, in an amount no less than $100.00 per case when a felony is charged. This provision creates an indigent legal assistance lien in the name of the State for such defendants. See § 938.29(2)(a)1. “A trial court must provide a statutory basis for every cost imposed.” V.D. v. State, 922 So.2d 1037, 1038 (Fla. 5th DCA 2006); see Holland v. State, 27 So.3d 103, 103–04 (Fla. 2d DCA 2009). Costs must be stricken unless the statutory authority is cited. See Fisher v. State, 697 So.2d 1291, 1292 (Fla. 1st DCA 1997).

Additionally, a defendant is entitled to adequate notice and an opportunity to object to the determination relating to the cost of defense. See § 938.29(5); Fla. R.Crim. P. 3.720(d)(1); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012). The trial court imposed $100.00 as a “COD” (cost of defense) without citing statutory authority or providing Appellant with notice and an opportunity to contest that amount. Accordingly, we strike this amount and remand for compliance with these requirements. See McCarthan, 91 So.3d at 269.

Section 938.27(1), Florida Statutes (2011), provides that in all criminal cases, convicted persons are liable for payment of the cost of prosecution, and the trial court must include this cost in every judgment rendered against the convicted defendant. The trial court imposed $100.00 as a “COP” (cost of prosecution) without citing statutory authority. We strike this amount and remand for the court to cite statutory authority. See Fisher, 697 So.2d at 1292; Hurt v. State, 670 So.2d 1144, 1145–46 (Fla. 1st DCA 1996).

Our full and independent review of the record discloses no other preserved errors and no fundamental error. Accordingly, we affirm Appellant's convictions and sentences, strike the erroneous costs, and remand for the trial court to correct these errors and to afford Appellant adequate notice and an opportunity to object to the cost of defense.

PER CURIAM.

CLARK, WETHERELL, and RAY, JJ., Concur.