Opinion
Case No. 2D20-64
02-19-2021
D.A.W., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Chief Judge.
In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), D.A.W. challenges an order adjudicating him delinquent with respect to one count of carrying a concealed firearm and one count of minor in possession of a firearm. We affirm the disposition but remand to correct a preserved sentencing error.
While this appeal was pending, D.A.W. filed in the trial court a motion pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), asserting that the public defender's fee had been imposed in violation of Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018), which requires the trial court to give the defendant notice of his or her right to a hearing to contest the fee when pronouncing its imposition at sentencing. The State filed a response below, conceding the error and joining D.A.W. in asking the court to grant the motion. The motion was never ruled upon and is thus deemed denied. See Fla. R. Juv. P. 8.135(b)(2)(B) (requiring that such motions be resolved in accordance with subdivision (b)(1)(B), which provides that where "no order is filed within 30 days, the motion shall be deemed denied").
Because the public defender's fee was imposed without giving D.A.W. notice of his right to a hearing to contest it as required by our decision in Newton, we reverse the imposition of the public defender's fee and remand for further proceedings. On remand, the court shall reimpose the fee, but only after providing D.A.W. with adequate notice and opportunity to be heard. We again certify conflict with the First District's decision in Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015), and the Fourth District's decision in Alexis v. State, 211 So. 3d 81 (Fla. 4th DCA 2017). See A.C. v. State, ––– So. 3d ––––, 45 Fla. L. Weekly D2784, 2020 WL 7310764 (Fla. 2d DCA Dec. 11, 2020).
Reversed and remanded; conflict certified.
LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.