Matke v. State, 97-1386.

• Decision Date: 13 February 1998
• Docket Number: No. 97-1386.,97-1386.
• Citation: 765 So.2d 52
• Parties: John MATKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

765 So.2d 52

John MATKE, Appellant, v. STATE of Florida, Appellee.

No. 97-1386.

District Court of Appeal of Florida, First District.

February 13, 1998.

Nancy A. Daniels, Public Defender, and Angela Shelley, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The sole issue raised in this direct appeal from appellant's conviction and sentence is whether the public defender lien was assessed improperly. We reverse.

We have repeatedly reversed when a trial court imposes a public defender's lien without giving the appellant notice of his right to a hearing to contest the amount, as is required under section 27.56(7), Florida Statutes, and Florida Rule of Criminal Procedure 3.720(d)(1). See Warren v. State, 701 So.2d 404 (Fla. 1st DCA 1997)

; Brantley v. State, 692 So.2d 282 (Fla. 1st DCA 1997); Brock v. State, 667 So.2d 1014 (Fla. 1st DCA 1996); Robinson v. State, 667 So.2d 384 (Fla. 1st DCA 1995); Willis v. State, 665 So.2d 354 (Fla. 1st DCA 1995). Such an error is considered fundamental. See Strickland v. State, 693 So.2d 1142 (Fla. 1st DCA 1997). Accordingly, we are obliged to strike the public defender lien, without prejudice. On remand, a lien may again be imposed, provided that appellant is given notice and an opportunity to contest its amount.

We recognize that appellee relies on Fourth District cases, Bryant v. State, 677 So.2d 932 (Fla. 4th DCA 1996) and Holmes v. State, 658 So.2d 1185 (Fla. 4th DCA 1995), which hold such errors are not fundamental, and therefore we certify conflict with those opinions.

REVERSED and REMANDED.

MINER, J., and SHIVERS, Senior Judge, concur.

WOLF, J., specially concurs.

WOLF, Judge, specially concurring.

I concur because of prior precedent. I fail to see, however, why the wrongful imposition of public defender's fees should be fundamental error when the imposition of certain improper sentences, which may involve incarceration, must be preserved for appellate review pursuant to section 924.051(3), Florida Statutes.