Locke v. State, 97-2431

• Decision Date: 21 October 1998
• Docket Number: No. 97-2431,97-2431
• Citation: 719 So.2d 1249
• Parties: 23 Fla. L. Weekly D2399 Michael Wade LOCKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1249

719 So.2d 1249

23 Fla. L. Weekly D2399

Michael Wade LOCKE, Appellant, v. STATE of Florida, Appellee.

No. 97-2431.

District Court of Appeal of Florida First District.

Oct. 21, 1998.

Nancy A. Daniels, Public Defender; Carol Ann Turner, Assistant Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for appellee.

GENERAL DIVISION EN BANC

WOLF, Judge.

Appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in the instant case. Having reviewed the record, we find one issue which merits discussion: Whether the trial court's method of imposition of statutorily authorized discretionary costs violated appellant's due process rights and therefore, constituted fundamental error. We find that no due process violation occurred and recede from that portion of our opinion in Neal v. State, 688 So.2d 392, 396 (Fla. 1st DCA) rev. denied, 698 So.2d 543 (Fla.1997), which holds that the failure to give notice to an individual defendant of the potential imposition of statutorily authorized public defender's fees at the time of sentencing constitutes fundamental error. We also certify a question of great public importance concerning whether the failure to orally itemize individual costs at the time of sentencing constitutes fundamental error.

In the instant case, a public defender's lien of $750 was imposed on the defendant at the time of sentencing. The defendant indicated that he had no objection to that amount. The judge also announced an aggregate amount of court costs. The defense raised no objection. A written judgment contained an itemized breakdown of the costs and fees. The costs included an assessment of statutorily authorized discretionary costs pursuant to section 943.25(13), Florida Statutes (1995). No objection of any kind was raised in the trial court concerning the imposition of discretionary statutory costs. No motion was filed pursuant to rule 3.800(b), Florida Rules of Criminal Procedure, questioning the method of assessing costs. The question before us in this case is whether the manner in which the trial court imposed costs constitutes fundamental error and thus may be raised for the first time on appeal.

In Neal, the court held that the imposition of public defender fees without prior specific notice constituted fundamental error which may be raised for the first time on appeal. See Neal, supra at 396. A public defender's lien is a specific type of discretionary statutorily authorized fee. See § 27.56, Fla. Stat. (1995). Thus, there is no valid reason to treat the discretionary costs assessed in this case differently than the assessment of public defender's liens. We are, therefore, faced squarely with the question concerning whether the holding in Neal as to fundamental error should continue to be followed by this court.

The Neal panel felt that it was bound by the cases of Henriquez v. State, 545 So.2d 1340 (Fla.1989), which held that imposition of a discretionary attorney fee obligation without notice and an opportunity to be heard constituted fundamental error, and Wood v. State, 544 So.2d 1004 (Fla.1989), which held that imposition of costs without notice and an opportunity to be heard constituted fundamental error. We find that the panel was incorrect for two independent reasons: (1) The cases relied on by the Neal panel have been effectively overruled by subsequent decisions of the supreme court; and (2) the subsequent adoption of the amendment to rule 3.800(b), which provides a formal mechanism for a postjudgment hearing and an opportunity to be heard in the trial court on the imposition of costs, constitutes a change in the material facts relied on by the court in Henriquez and Wood thereby obviating the necessity of continuing to follow those cases.

Henriquez and Wood were based on the supreme court's decision in Jenkins v. State, 444 So.2d 947 (Fla.1984). In Jenkins, the court held that the assessment of certain statutorily mandated costs at the time of sentencing without providing the defendant prior notice and an opportunity to be heard was a denial of due process. See id. at 950. Collectively, Jenkins, Wood, and Henriquez stand for the proposition that due process requires a trial judge to give a defendant actual notice at the time fees or costs are imposed, and that failure to give such actual notice constitutes fundamental error. In State v. Beasley, 580 So.2d 139 (Fla.1991), however, the supreme court held that the defendant had constructive notice of the imposition of statutorily mandated costs as a result of their publication in the Laws of Florida or the Florida Statutes. See id. at 142. The court discussed its holding in light of Jenkins Beasley also had an opportunity to be heard at the sentencing hearing and raise any pertinent objections. Having been given adequate notice and an opportunity to be heard, the assessment of costs complied with due process. Under Jenkins, therefore, the district court erred by holding that Beasley had been denied due process because the trial court failed to make a determination of his ability to pay before it assessed the mandatory costs. Any determination of Beasley's ability to pay need be made only when the state seeks to enforce collection of the costs.

Id. Similarly, in State v. Hart, 668 So.2d 589 (Fla.1996), the court, relying on Beasley, held that publication of the general conditions of probation in the Florida Rules of Criminal Procedure, like the publication of statutorily mandated costs in the Florida Statutes, provided a criminal defendant with constructive notice of those conditions which may be imposed; therefore, a trial court is not required to orally pronounce these general conditions at the time of sentencing. See id. at 592-593.

In A.B.C. v. State, 682 So.2d 553 (Fla.1996), the court, relying on Beasley and Hart, upheld a condition of community control imposing a curfew on a juvenile although it was not orally pronounced in court because it was statutorily authorized by Florida Statutes. See id. at 554-555. The court noted, "[i]n Hart, we stated that 'a condition of probation which is statutorily authorized or mandated ... may be imposed and included in a written order of probation even if not orally pronounced at sentencing.' " Id. at 554. Beasley, Hart, and A.B.C., stand for the proposition that a defendant is on notice of all statutorily authorized costs and conditions that may be imposed at the time of sentencing, and that a defendant is not required to be given a formal hearing on his ability to pay until the state seeks to enforce the costs which have been imposed. Under these decisions, the procedure utilized by the trial court in the instant case does not constitute error, much less fundamental error.

In Wood and Henriquez, the supreme court was responding to certified questions concerning whether a defendant must raise a contemporaneous objection, and the court held that fundamental error existed in those cases as a result of a denial of due process (no notice and opportunity to be heard). As previously noted in this opinion, the supreme court has since clarified its position concerning notice. In regard to providing opportunity to be heard, however, it is significant that Henriquez and Wood predate the adoption of section 924.051(3), Florida Statutes, and rule 3.800(b), Florida Rules of Criminal Procedure, which was added in 1996 specifically to address a defendant's opportunity to be heard on sentencing issues and preservation of such issues for appeal:

Subdivision (b) was added ... in order to authorize the filing of a motion to correct a sentence or order of probation, thereby providing a vehicle to correct sentencing errors in the trial court and to preserve the issue should the motion be denied.

Fla. R.Crim. P. 3.800, court commentary (1996 amendments). The adoption of rule 3.800(b) ameliorates any remaining questions concerning opportunity to be heard. Absent due process considerations, clearly the failure to itemize statutorily authorized costs does not rise to the level of fundamental error. ¹

In Dodson v. State, 710 So.2d 159, 161 (Fla. 1st DCA 1998), we observed,

Following the enactment of section 924.051 and amended rule 3.800(b), this court has issued several decisions on the issue of what constitutes fundamental error in the context of allegations of other various sentencing errors. See, e.g., Howard v. State, 705 So.2d 947, (Fla. 1st DCA 1998) (affirming as unpreserved the trial court's failure to award credit for time served); Cargle v. State, 701 So.2d 359 (Fla. 1st DCA 1997) (affirming as unpreserved a claim that the trial court erred in sentencing juvenile as adult without considering statutory criteria in section 39.059(7)); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997) (affirming as unpreserved a claim that defendant received an improper upward departure sentence because the sole reason given for the departure had already been taken into account in computing his guidelines score); Williams v. State, 697 So.2d 164 (Fla. 1st DCA 1997) (affirming as unpreserved an alleged scoresheet error). We fail to see how the wrongful imposition of a nominal discretionary attorney's fee lien can be deemed any more fundamental than wrongful incarceration.

We recede from Neal to the extent that it conflicts with our holding in this case. We also certify the following question to be one of great public importance:

DOES THE FAILURE OF THE TRIAL COURT TO ORALLY PRONOUNCE EACH STATUTORILY AUTHORIZED COST INDIVIDUALLY AT THE TIME OF SENTENCING CONSTITUTE FUNDAMENTAL ERROR?

Affirmed.

BARFIELD, C.J., and ERVIN, ALLEN, KAHN and DAVIS, JJ., concur.

JOANOS, J., concurs in result only with written opinion with which LAWRENCE, J., concurs.

WEBSTER, J., dissents with written opinion with which MINER, J., concurs.

JOANOS, Judge, ...