RODRIGUEZ v. STATE

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Angel RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.

No. 5D16–1539.

Decided: October 28, 2016

Angel Rodriguez, Bristol, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent–Tripp, Assistant Attorney General, Daytona Beach, for Appellee.

Angel Rodriguez appeals the summary denial of the motions he filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and 3.850. We affirm in all respects except one. Because the trial court failed to attach sufficient records to refute Rodriguez's challenge to the imposition of a $200 public defender fee, we reverse and remand for reconsideration of that issue.1

Rodriguez argues the trial court erroneously imposed a higher public defender fee without making any factual findings and without informing him that he could contest the fee. In denying this claim, the trial court concluded:

The claim regarding the $200 PD Rep Fee is conclusively refuted by the record. A review of the change of plea and sentencing hearing reveals that the Defendant was specifically asked if he will challenge the 200[sic] fee, but declined․ Thus, the first claim is without merit.

On the record before us, we are compelled to disagree.

“When a public defender lien is imposed, ‘[n]otice of the accused's right to a hearing to contest the amount of the lien shall be given at the time of the sentence.’ “ Richie v. State, 777 So.2d 977, 978 (Fla. 2d DCA 1999) (alteration in original) (quoting Fla. R.Crim. P. 3.720(d)(1)). “[I]t is error to impose such a lien without giving the defendant the required notice.” Id. (citing Basham v. State, 695 So.2d 887 (Fla. 2d DCA 1997)).

Here, the trial court relied on the following exchange when it denied Rodriguez's claim.

THE COURT: I'm going to judge you [sic] be guilty of the offense. Sanction will be 120 months in the Department of Corrections as a habitual violent felony offender, (HVFO). This is a 10–year minimum mandatory, 120 months minimum mandatory. Credit for time served as may by applicable under the statute. 398 court costs, 250 Public Defender cost.

Do you have any challenge to the first $200 of that amount?

THE DEFENDANT: No, Sir.

Without more, this type of general response is insufficient to waive a defendant's right to challenge fees. See Norris v. State, 659 So.2d 1352, 1355 (Fla. 5th DCA 1995) (“When asked by the trial court if he had any objection to a lien of $100, Norris replied that he did not. Nevertheless, we do not consider Norris's response to be a valid waiver.”). Accordingly, we reverse the summary denial of this claim and remand for attachment of records conclusively showing that Rodriguez was advised of his right to contest the fee or for an evidentiary hearing. See Lewis v. State, 629 So.2d 1051, 1052 (Fla. 2d DCA 1993).2 In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

PER CURIAM.

PALMER, ORFINGER and BERGER, JJ., concur.