Blanchette v. State

• Decision Date: 28 June 1993
• Docket Number: No. 92-2119,92-2119
• Citation: 620 So.2d 258
• Parties: 18 Fla. L. Week. S1522 Jeffrey Glen BLANCHETTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 258

620 So.2d 258

18 Fla. L. Week. S1522

Jeffrey Glen BLANCHETTE, Appellant, v. STATE of Florida, Appellee.

No. 92-2119.

District Court of Appeal of Florida,

First District.

June 28, 1993.

Nancy A. Daniels, Public Defender, Kathleen Stover, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Asst. Atty. Gen., for appellee.

KAHN, Judge.

On April 7, 1992, Mr. Blanchette entered into a written plea agreement concerning a pending charge of burglary in Bay County. The agreement called for Blanchette to plead no contest to the charge. A portion of paragraph 1 of the plea agreement provided, inter alia, the following terms: "court costs; up to $5,000 fine; public service work hrs. plus fee...." Paragraph 10 of the plea agreement provided that Blanchette understood "that at sentencing the State, County and various agencies may seek assessment of costs against me pursuant to various statutes and ordinances...." Pursuant to the plea, the trial judge entered an order which withheld adjudication of guilt and placed Blanchette on probation. As specific terms of probation, the order required the following: (1) payment of court costs in the amount of $229.00; (2) payment of $50.00 a month toward the cost of supervision; (3) payment of a fine in the amount of $2,000.00; (4) performance of 300 hours of public service work in the Bay County Work Program; and (5) payment to the Clerk of the Circuit Court of Bay County the sum of $150.00 "which is assessed as additional costs associated with your participation in the Bay County Work Program which said costs are assessed pursuant to Administrative Order 89-14." We strike the imposition of costs related to the Bay County Work Program, and certify a question to the Florida Supreme Court.

The state has pointed out to us that Blanchette pled no contest and agreed to public service work hours plus fees. Blanchette neither reserved the right to appeal, notwithstanding his no contest plea, nor did he in any manner raise below the propriety of the Bay County Work Program fees. The state expresses its concern that by reviewing on appeal unpreserved elements of a sentence arising out of a plea bargain, this court is allowing defendants to "have their cake and eat it too." The defense responds that the entire matter is controlled by this court's opinion on rehearing in Martin v. State, 618 So.2d 737 (Fla. 1st DCA 1993) (on rehearing), that the fees are illegal, and accordingly, they must be stricken. The state counters, that even if the defendant is permitted to raise the unpreserved issue, assessment of the fee is appropriate under our decision in Thicklin v. State, 599 So.2d 202 (Fla. 1st DCA 1992).

Blanchette correctly posits that sentencing errors may be raised on appeal, even if they were not objected to below. See State v. Rhoden, 448 So.2d 1013 (Fla.1984). A court cannot impose an illegal sentence pursuant to a plea bargain, nor may a defendant agree to an illegal sentence as part of that bargain. Williams v. State, 500 So.2d 501, 503 (Fla.1986); Danzy v. State, 603 So.2d 1320, 1322 (Fla. 1st DCA 1992). ^* Thus, Blanchette has the right to challenge the legality of his sentence in this appeal. We conclude that the work program costs are without legal basis, Martin, and that, in any event, the plea agreement in this case did not authorize imposition of these costs.

In Thicklin, supra, we upheld imposition of costs under the Bay County Work Program, because the defendant agreed that "Fines and costs shall be within the court's discretion." We construed such a provision contained in the plea agreement as an express agreement to pay fines and costs. 599 So.2d at 204-205. In Martin, supra, the court made no reference to Thicklin, and proceeded to address assessment of costs for participation in the Bay County Work Program which were imposed in connection with Martin's conviction for possession of cocaine and sale of cocaine. We observed that section 948.09(1), Florida Statutes (1991), authorizes the trial court to require a probationer to pay for the costs of supervision. We further acknowledged, that pursuant to section 948.51, Florida Statutes (1991), nonviolent offenders may be diverted from the state prison system and punished with community-based sanctions. We then noted:

An examination of section 948.51 reveals an absence of any provision which could be construed as authorizing the $500.00 assessed against appellant as additional costs for his participation in the Bay County Work Program. Rather, a reading of the statutory provision in its entirety evinces legislative intent that such community-based corrections programs shall be funded by the state, to be effected in part by the assessments authorized pursuant to section 948.09(1). This intent is evident when section 948.51 is read in pari materia with the section 948.09(1) provision that "[f]unds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature."

In other words, as appellant contends, there appears to be no statutory authority for the additional $500.00 assessed in this case for cost of supervision in the Bay County Work Program. Rather, section 948.09(1), limiting such assessment to no less than $40 and no more than $50 per month, seems to be the overall vehicle by which the Department of Corrections supplements legislative appropriations to fund its programs. In effect, the additional $500.00 which appell...