Henry v. State

Full title: ERNEST CLINTON HENRY, JR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Oct 11, 1990

567 So. 2d 566 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-1956.

October 11, 1990.

Appeal from the Circuit Court for Putnam County; E.L. Eastmoore, Judge.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

We affirm. The dissent is eminently correct that the imposition of costs in this case was erroneous because of lack of notice and opportunity to be heard. Even the state concedes error, given the controlling case law on this point. Mays v. State, 519 So.2d 618 (Fla. 1988); Rowe v. State, 558 So.2d 174 (Fla. 5th DCA 1990).

However, as one method of expediting the handling of criminal cases in this court, we informally adopted the policy of dealing with these single-issue cost appeals by court order, and dealing with the case summarily, (a PCA) unless other issues are involved. None was in this case.

It seems clear to us that the last thing we need is another DCA opinion echoing Mays; Harriel v. State, 520 So.2d 271 (Fla. 1988) and Jenkins v. State, 444 So.2d 947 (Fla. 1984). Its publication in Southern Reporter is superfluous, and a waste of everyone's time and effort.

AFFIRMED.

COBB and W. SHARP, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge, dissenting.

I respectfully dissent.

In the judgment the sentencing court imposed costs pursuant to section 27.3455, Florida Statutes (1987). Because these costs were imposed without giving appellant the opportunity to object or be heard, they were illegally imposed. Harriel v. State, 520 So.2d 271 (Fla. 1988). This portion of the judgment should be reversed by a decision and mandate of this court. On September 6, 1990 an order over the signature of the clerk of this court was entered in this court's file in this case and the order indicates a copy was sent to the circuit court clerk, the sentencing judge and the attorneys for the parties. That order, which is not supported by a mandate from this court, is ineffective to accomplish the end it purports to accomplish, the reversal of that portion of the judgment deemed in error.

I would issue an opinion and mandate reversing that portion of the judgment which assesses the costs. See also Mays v. State, 519 So.2d 618 (Fla. 1988); Jenkins v. State, 444 So.2d 947 (Fla. 1984).