LEOMBRUNO v. STATE (2021)

In this Anders ¹ appeal, Chandler Richard Leombruno appeals his judgments and sentences in seven cases. We affirm in all respects but note that a possible unpreserved sentencing error may exist in one of the written judgments for fines and costs.

The written judgment for fines and costs for case number 18-CF-13870 reflects a $200 county laboratory fee. But the trial court orally ordered $100 for that fee. The trial court specifically asked, “So the lab[oratory] fees, there's ․ a $100 on 1813870. There's just one $100, but it's on Counts III and IV. Right?”; the State confirmed the trial court's assumption.

Laboratory fees are typically discretionary, see Kennedy v. State, 701 So. 2d 634, 635 (Fla. 2d DCA 1997), and must be orally pronounced, see Thomas v. State, 190 So. 3d 222, 223 (Fla. 1st DCA 2016). Accordingly, there is a possible sentencing error regarding the trial court's assessment of a $200 laboratory fee where it orally imposed $100. See id. (“[A] review of the record reveals a possible sentencing error concerning the court's assessment of $100 in sheriff's investigative costs ․ as the court did not orally pronounce the discretionary cost at the sentencing hearing.”); see also Wilcox v. State, 674 So. 2d 191, 191 (Fla. 2d DCA 1996) (remanding for the trial court to correct the amount in written order to comport with the amount it orally imposed at the plea hearing).

Because Mr. Leombruno failed to preserve this potential error by objecting or filing a motion to correct sentencing error, we must affirm. See R.L.F. v. State, 228 So. 3d 633, 633 (Fla. 2d DCA 2017) (affirming without prejudice where the defendant failed to properly preserve the sentencing error). Our affirmance is without prejudice for Mr. Leombruno to seek postconviction relief, if possible. See id.

Affirmed.

FOOTNOTES

1.   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

LaROSE, Judge.

SILBERMAN and SMITH, JJ., Concur.