Williams v. State, 90-3461

• Decision Date: 11 December 1991
• Docket Number: No. 90-3461,90-3461
• Citation: 591 So.2d 295
• Parties: Tracy L. WILLIAMS, Appellant, v. STATE of Florida, Appellee. 591 So.2d 295, 16 Fla. L. Week. D3047
• Court: Florida District Court of Appeals

Page 295

591 So.2d 295

Tracy L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 90-3461.

591 So.2d 295, 16 Fla. L. Week. D3047

District Court of Appeal of Florida,

Fourth District.

Dec. 11, 1991.

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Jacqueline Saltiel, Asst. Atty. Gen., West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing, vacate our previous opinion, and substitute the following opinion.

We affirm in part and reverse in part the trial court's imposition of various costs upon Williams. The trial court did not orally assess these costs at the sentencing hearing. We reverse the imposition of two years of community control, because the trial court did not provide written reasons for the sentencing departure.

On the authority of State v. Beasley, 580 So.2d 139 (Fla.1991), we conclude that a trial court's failure to orally pronounce the imposition of mandatory costs upon a defendant is not reversible error. Accordingly, we affirm the imposition of $20.00 in victim costs pursuant to section 960.20, Florida Statutes (1989).

We reverse the trial court's assessment of $720.00 for court costs. Because this assessment was discretionary, the trial court erred both in failing to afford Williams adequate notice and an opportunity to be heard and in failing to orally pronounce the imposition of these discretionary costs upon Williams at the sentencing hearing. See Jenkins v. State, 444 So.2d 947, 949-50 (Fla.1984); Kord v. State, 508 So.2d 758, 758 (Fla. 4th DCA 1987). Therefore, the trial court is directed to strike the imposition of court costs upon Williams.

We also reverse the trial court's assessment of $200.00 pursuant to section 27.3455, Florida Statutes (Supp.1990). Although this assessment was mandatory, the judgment reflects that the $200.00 assessment was waived. Therefore, the trial court is directed to strike this assessment from the order of probation.

Moreover, the trial court improperly sentenced Williams under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), to one year in prison. A Villery sentence consists of a "period of probation preceded by a period of confinement imposed as a special condition." Poore v. State, 531 So.2d 161, 164 (Fla.1988). According to Villery, a special condition of probation is limited to less than one year, or no more than 364 days. Villery, 396 So.2d at 1111; Harris v. State, 576 So.2d 426, 427 (Fla. 4th DCA 1991). The trial court sentenced Williams to one year, or 365 days, which exceeded the sentencing limit by one day. Yet, even though a sentencing error exists, because Williams has already served the term of imprisonment the matter is moot and does not require reversal. See Williams v. State, 549 So.2d 734, 735 (Fla. 2d DCA 1989).

Furthermore, we reverse the trial court's imposition of the two year community control sentence on Williams, which followed his one year of imprisonment. A sentence of community control as a condition of probation is a departure sentence. State v. Mestas, 507 So.2d 587, 587-88 (Fla.1987). Thus, the trial court was required to provide written reasons for imposing the sentence on Williams, whose recommended sentence was any nonstate prison sanction. Id.; State v. VanKooten, 522 So.2d 830, 831 (Fla.1988). Because the trial court did not provide written reasons for the community control...