Opinion
No. 84-326.
May 29, 1985. Cause Dismissed March 6, 1986, 484 So.2d 4. On Motion for Rehearing October 1, 1986.
Appeal from the Circuit Court for Broward County; LeRoy H. Moe, Judge.
Richard L. Jorandby, Public Defender, Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Georgina Jimenez-Orosa, Asst. Attys. Gen., West Palm Beach, for appellee.
ON MOTION FOR STAY OF MANDATE
The state moved to stay the mandate in Smith v. State, 10 F.L.W. 59 (Fla. 4th DCA Dec. 28, 1984), pending the Florida Supreme Court's consideration of a petition to review L.S. v. State, 446 So.2d 1148 (Fla. 3d DCA 1984).
Our opinion in Smith hinged on the same question as L.S. v. State. We had thought that the Second District Court of Appeal had correctly interpreted the Florida Supreme Court's decision in State v. Waters, 436 So.2d 66 (Fla. 1983), parting company with the Third and Fifth Districts, whose interpretations were different.
While we were deliberating on the state's motion, the Florida Supreme Court ruled in support of the Third District's holding. L.S. v. State, 464 So.2d 1195 (Fla. 1985). Accordingly, we withdraw our opinion in Smith v. State, 10 F.L.W. 59, and affirm the judgment of the trial court.
We reiterate, however, that the trial court must give the indigent defendant notice and opportunity to object before the court may assess costs against him. Jenkins v. State, 444 So.2d 947 (Fla. 1984). Therefore, we strike the assessment of costs, without prejudice to the state to tax the costs in accordance with the required procedure. Williams v. State, 445 So.2d 408 (Fla. 4th DCA 1984).
ANSTEAD, C.J., and BARKETT, J., concur.
ON MOTION FOR REHEARING
The original basis for this motion arose when this court withdrew its original opinion of reversal and affirmed the trial court. Because we had reversed appellant's conviction we found it unnecessary to consider his challenge to the court's sentence. Now the basis of the motion is the trial court's departure from the guidelines in sentencing appellant. We find the reasons therefor to be insufficient and remand for sentencing within the guidelines.
In all other respects, the motion is denied.
ANSTEAD, GLICKSTEIN and GUNTHER, JJ., concur.