STANGE v. STATE (2020)

ORDER STRIKING INITIAL BRIEF

Appellant's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no issues of arguable merit. Our independent review reveals an unpreserved sentencing error apparent on the face of the record. See generally Hubbard v. State, 248 So. 3d 177, 178 (Fla. 2d DCA 2018) (“We must conduct an independent review of the record following [an Anders brief].”). Accordingly, we strike the brief under the authority of Florida Rule of Appellate Procedure 9.140(g)(2)(B).

Appellant entered into a plea agreement for a felony offense on April 23, 2019. Paragraph 24 of the plea agreement stated that Appellant understood that he had “a right to a hearing before the Court to determine the amount of attorney's fees and/or costs in excess of the minimum fees and costs provided by Section 938.29, Florida Statutes [(2018)],” and that he waived that right if he did not request the hearing. (Emphasis added.) The trial court subsequently imposed a $100 fee for regional counsel under section 938.29. See generally § 938.29(1), Fla. Stat. (2018) (setting the mandatory minimum regional counsel fee at $100 for a felony case).

However, our district holds that notice is required at sentencing when the trial court imposes the statutory minimum of $100; it is not limited to when the trial court imposes “in excess of” the statutory minimum. See Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018) (explaining that the trial courts in our district must follow our precedent, which has held that Florida Rule of Criminal Procedure 3.720(d)(1) and section 938.29(5) requires the trial court to notice the defendant of his or her right to a hearing to contest the fee for court-appointed counsel—including for the statutory minimum fee—when imposing the fee at sentencing); see also Jenkins v. State, 45 Fla. L. Weekly D1373, D1373, ––– So.3d ––––, –––– (Fla. 2d DCA June 5, 2020) (“revers[ing] the $100 public defender fee and remand[ing] for the trial court to either strike the fee or advise Mr. Jenkins of his right to contest it”); Gedehomme v. State, 160 So. 3d 533, 534 (Fla. 2d DCA 2015) (holding that the trial court erred in imposing a $100 public defender fee without giving Gedehomme an opportunity to request a hearing, and instructing that “[t]he court may reimpose the $100 public defender fee but only after proper notice and the opportunity for Gedehomme to be heard on that issue”).¹

Pursuant to rule 9.140(g)(2)(B), we strike the Anders brief so that Appellant's counsel may file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to correct the sentencing error identified above. Within twenty days of the date of this order, counsel shall file such motion with the trial court, which the trial court shall dispose of in accordance with the procedures enumerated in rule 3.800(b)(2)(B). Following disposition, the clerk of the circuit court shall transmit a supplemental record pursuant to rule 9.140(f)(6). Counsel shall file an amended initial brief within twenty days following transmittal of the supplemental record.

FOOTNOTES

1.   But see Alexis v. State, 211 So. 3d 81, 82 (Fla. 4th DCA 2017) (holding notice is not required before imposing the statutorily mandated minimum public defender's fee); Mills v. State, 177 So. 3d 984, 988 (Fla. 1st DCA 2015) (same).

PER CURIAM.

VILLANTI, LaROSE, and MORRIS, JJ., Concur.