Crowder v. State
Decision Date | 02 December 2020 |
Docket Number | Case No. 2D19-4217 |
Citation | 313 So.3d 704 |
Parties | Thomas Lee CROWDER, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Thomas Crowder challenges his judgment and sentences for sale of a controlled substance within 1000 feet of a park, possession of drug paraphernalia, and possession of cocaine which were rendered upon his negotiated plea of no contest to the charges. Our independent review of the record reveals no basis to reverse either the judgment or the sentences, but we write to address a minor, unpreserved sentencing error that was not identified by appellate counsel in the Anders brief but which arises with some frequency in cases before this court.
The trial court imposed a $100 fee for the services of the Office of the Public Defender, and our review of the transcript of the plea and sentencing hearing does not reveal that Crowder was orally notified of his right to a hearing to contest that fee. Nor was the right to a hearing addressed in the plea form. Our court holds that Florida Rule of Criminal Procedure 3.720(d)(1) and section 938.29, Florida Statutes (2019), require notice to be provided before imposition of the statutorily mandated fee. See Vandawalker v. State, No. 2D18-4977, 310 So.3d 483, 483) ; Jenkins v. State, 310 So.3d 464, 464 (Fla. 2d DCA June 5, 2020) ; Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018) ; Gedehomme v. State, 160 So. 3d 533, 534 (Fla. 2d DCA 2015) ; Neal v. State, 62 So. 3d 1277, 1277-78 (Fla. 2d DCA 2011).
However, the improper imposition of a public defender fee "does not constitute fundamental error" but rather is a sentencing error that should be raised in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008) ; Maddox v. State, 760 So. 2d 89, 109 (Fla. 2000) ().1 The preservation requirement applies regardless of whether counsel has filed a no-merit brief pursuant to Anders, thereby necessitating this court's independent review. See Gedehomme, 160 So. 3d at 534 ( ); cf. Swift v. State, 53 So. 3d 394, 395 (Fla. 2d DCA 2011) ( ); Meier v. State, 912 So. 2d 1277, 1279 (Fla. 2d DCA 2005) ( ); Ciccia v. State, 854 So. 2d 243, 243 (Fla. 4th DCA 2003) ( ).
We note further that "indigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues[—including the improper imposition of costs—]in ‘no merit’ briefs." In re Anders Briefs, 581 So. 2d 149, 152 (Fla. 1991). Indeed, this court has recognized that "[c]ost issues are properly included in an Anders brief." Meier, 912 So. 2d at 1278 n.2 ; see also Lambert v. State, 912 So. 2d 1275, 1276 (Fla. 2d DCA 2005) .
Yet, in this case, the public defender fee issue was neither preserved below via a rule 3.800(b) motion, nor was it identified as a possible error by counsel in the Anders brief. We recognize that we have discretion to address unpreserved sentencing errors in the Anders context by striking the briefs and permitting the appellant to file a rule 3.800(b)(2) motion. See Fla. R. App. P. 9.140(g)(2)(B) ; see also Stange v. State, No. 2D19-1613, 304 So.3d 1287, 1287(Fla. 2d DCA Oct. 14, 2020) ( ).
But in this case, we do not have the same misadvisement concern that was present in Stange.2 Instead, we have the basic failure-to-advise issue, which was neither preserved in a rule 3.800(b)(2) motion, nor even identified as a possible issue in the Anders brief. Thus we conclude that the better approach is to affirm. Cf. Selwyn v. State, 903 So. 2d 361, 363 (Fla. 2d DCA 2005) ( ); Rivera v. State, 718 So. 2d 856, 858-859 (Fla. 4th DCA 1998) ( ).
Finally, we note that Crowder still has an avenue to seek relief on this issue. He may raise the issue in a timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Lindquist v. State, 155 So. 3d 1193, 1194 (Fla. 2d DCA 2014) ( ); Rodriguez v. State, 202 So. 3d 460, 461 n.1 (Fla. 5th DCA 2016) ( ).
Accordingly, we affirm without prejudice to Crowder's right to raise this issue in a motion filed pursuant to rule 3.850.
1 Although the court in Maddox used the term "costs," one of the cases before it involved the imposition of public defender fees. 760 So. 2d at 108 n.17.
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