Dodson v. State

• Decision Date: 22 April 1998
• Docket Number: No. 97-526,97-526
• Citation: Dodson v. State, 710 So.2d 159 (Fla. App. 1998)
• Parties: 23 Fla. L. Weekly D1044 Ricky Allen DODSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 159

710 So.2d 159

23 Fla. L. Weekly D1044

Ricky Allen DODSON, Appellant, v. STATE of Florida, Appellee.

No. 97-526.

District Court of Appeal of Florida First District.

April 22, 1998.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and J. Ray Poole, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant was charged with grand theft of a firearm. He entered a plea of no contest and was sentenced to three years in a youthful offender institution to be followed by three years on probation. He appeals the assessment of eighteen points on his sentencing guidelines scoresheet for possession of a firearm during the commission of the offense. He also challenges the imposition of certain costs and fees with no reference to statutory authority and without notice and an opportunity to be heard. We reverse and remand as set forth below.

Florida Rule of Criminal Procedure 3.703(d)(19) provides in pertinent part:

Possession of a firearm, semiautomatic firearm, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points are assessed if the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a firearm as defined in subsection 790.001(6).

At sentencing, appellant was assessed eighteen points on his guidelines scoresheet for having in his possession a firearm during the commission of the crime. This assessment was improper under the facts of this case because appellant committed the crime when he took the firearm; he did not possess a firearm when he committed the crime. The plain language of rule 3.703(d)(19) limits its application to those instances where the charged offense is committed while the perpetrator possessed a firearm, not to those instances where the offense charged consists of acquiring a firearm. Stated otherwise, we construe the rule as authorizing an eighteen-point assessment only when an offense is committed while in the possession of a firearm, not when an offense is committed by the acquisition of a firearm. We therefore reverse the sentence and remand for resentencing under an amended scoresheet.

We must also reverse the costs assessed in this case. At the sentencing hearing, the court orally imposed court costs of $660 and costs of supervision in the amount of $50 per month. The written judgment of guilt and placing defendant on probation provides: "Pay $660.00 to the Clerk of the Court on schedule of Probation Officer; said amount to include court costs, Crimes Compensation Trust Fund fee, Public Defender fee and statutory fees. The court places a $660.00 lien against you for court costs and fees. You may perform community service work in lieu of payment at the rate of minimum hourly wage." The written charges/costs/fees form assesses $50 pursuant to section 960.20, Florida Statutes (Crimes Compensation Trust Fund), and $3.00 as a court cost pursuant to section 943.25(3), Florida Statutes (Criminal Justice Trust Fund).

Costs imposed in a criminal case must be specifically authorized by statute, and it is error to impose costs without reference to statutory authority or an explanation in the record as to what the costs represent. See Spencer v. State, 650 So.2d 228 (Fla. 1st DCA 1995); Bradshaw v. State, 638 So.2d 1024 (Fla. 1st DCA 1994). If a cost is discretionary under a statute, it must be orally pronounced at sentencing and the defendant must be given an opportunity to object. See Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995). In addition, a public defender's fee cannot be imposed without notice and an opportunity to be heard to contest the amount. See Bryant v. State, 661 So.2d 1315 (Fla. 1st DCA 1995).

The state, citing section 924.051(3), Florida Statutes (Supp.1996), argues that appellant failed to preserve the issue of the imposition of costs and fees. In Neal v. State, 688 So.2d 392 (Fla. 1st DCA), rev. denied, 698 So.2d 543 (Fla.1997), this court held that it is fundamental error to order a criminal defendant to pay attorney's fees without affording adequate notice and an opportunity to be heard and, thus, that issue may be raised on appeal notwithstanding the fact that it was never presented to the trial court. See also Matke v. State, Case No. 97-1386, --- So.2d ----, (Fla. 1st DCA Feb.13, 1998). Because it is impossible on the instant record to ascertain the amounts appropriated to the public defender's fee and other discretionary costs, we must reverse and remand with directions to the trial court to specify the amount allocated for each cost assessment, to cite the statutory authority therefor, and to provide notice and an opportunity to be heard with regard to the reassessment of a public defender's fee or any discretionary cost.

It is unnecessary for us to address whether the wrongful imposition of discretionary costs, standing alone, constitutes fundamental error in light of the order on appeal, which makes it impossible to segregate the amount of the public defender's fee from the discretionary costs.

The advent of section 924.051 and amended Florida Rule of Criminal Procedure 3.800(b) has created, and will continue to create, some uncertainty in the area of what constitutes fundamental error with regard to certain sentencing errors. Although we are reversing the imposition of the public defender's lien under our previous...