Opinion
Case No. 2D18-4977
10-09-2020
Christopher VANDAWALKER, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge.
Christopher Vandawalker appeals his judgment and sentences after entering an open plea to four drug-related charges. We reverse the trial court's imposition of a $100 prosecution cost and $100 public defender fee and remand for entry of a corrected fee order. We affirm Vandawalker's judgment and sentences in all other respects.
As a condition of probation, the trial court ordered Vandawalker to pay $100 for the costs of prosecution and $100 for the services of the Office of the Public Defender. During the pendency of this appeal, Vandawalker filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing (1) that costs were mentioned without statutory authority and without telling Vandawalker that he had the right to a hearing and (2) that fees were imposed without any supporting affidavits or notice of a right to a hearing. Since the trial court did not rule on the motion within sixty days, it is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).
The plain language of section 938.27(1), Florida Statutes (2018), requires that prosecution costs be requested. Since the record contains no such request, we reverse the imposition of the cost of prosecution. See Davis v. State, 286 So. 3d 898, 899 (Fla. 2d DCA 2019). The cost may not be reimposed on remand. See id. Furthermore, when imposing a public defender fee, a trial court must first give a defendant notice of his right to a hearing. Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018). Here, the trial court failed to notify Vandawalker of his right to a hearing to contest the $100 public defender fee imposed at sentencing. We therefore reverse this fee and remand for the trial court to enter a corrected fee order only after Vandawalker has been given an opportunity to contest the fee.
Affirmed in part, reversed in part, and remanded.
SMITH, J., Concurs.
CASANUEVA, J., Concurs in result only.