199 So. 3d 974
Fla. Dist. Ct. App.2016Background
- Brooks was charged with burglary of a structure (Count I) and second-degree petit theft (Count II). He pleaded no contest only to Count I under a written plea agreement.
- The plea form warned Brooks he might be responsible for various fees, and that failure to object at sentencing could waive appellate rights as to fees.
- At sentencing the court announced that certain costs (including public defender fees) would be imposed but did not state any dollar amounts; defense counsel did not object.
- Post-sentencing orders assessed public defender fees totaling $2,461 and the final judgment reflected adjudications on both Count I and Count II.
- Brooks filed a rule 3.800(b)(2) motion to strike the public defender fees (arguing lack of statutorily required notice and opportunity to be heard) and to vacate conviction on Count II (arguing he was sentenced on a count to which he did not plead); the trial court did not rule within 60 days (motion deemed denied).
Issues
| Issue | Brooks' Argument | State's Argument | Held |
|---|---|---|---|
| Whether public defender fees were imposed without statutorily required notice and opportunity to contest. | Court failed to notify him of fee amounts or his right to a hearing as required by §938.29(5) and Fla. R. Crim. P. 3.720(d)(1); fees must be struck. | Plea form warned waiver if he did not object at sentencing, so he was on notice and forfeited review. | Reversed as to fees procedure: defendant must be informed at sentencing of the fee amount and right to contest; remand for resentencing and hearing on fees if requested. |
| Whether sentencing and adjudication on Count II was fundamental error because Brooks did not plead to that count. | It was fundamental error to adjudicate and sentence him on Count II when he entered a plea only to Count I; conviction must be vacated. | State conceded error. | Reversed conviction for Count II; remanded for resentencing on Count I only. |
Key Cases Cited
- Dabel v. State, 79 So. 3d 873 (Fla. 4th DCA 2012) (failure to notify defendant of intent to impose PD fees and right to contest requires reversal)
- Migliore v. State, 953 So. 2d 754 (Fla. 2d DCA 2007) (sentencing court must state fee amount and advise right to a hearing)
- Finkelstein v. State, 944 So. 2d 1226 (Fla. 4th DCA 2006) (defendant deprived of opportunity to be heard on PD fees; reversal and remand for notice/hearing)
- Brown v. State, 682 So. 2d 667 (Fla. 4th DCA 1996) (trial court must notify defendant of right to contest fees at sentencing)
- Brown v. State, 960 So. 2d 905 (Fla. 2d DCA 2007) (adjudicating guilt on an offense to which defendant did not plead is fundamental error)
- Smith v. State, 143 So. 3d 1023 (Fla. 4th DCA 2014) (motion to correct sentencing error reviewed de novo)
- Salter v. State, 77 So. 3d 760 (Fla. 4th DCA 2011) (same)