Byrd v. State

Jan 4, 1978

No. 76-2134

Versions:353 So. 2d 1228

1978 Fla. App. LEXIS 14835

Lead Opinion

DAUKSCH, Judge.

We have no jurisdiction to consider the appeal because Appellant appealed only from the Judgment and not the Order placing the Defendant on probation. Recht v. State, 344 So.2d 885 (Fla. 4th DCA 1977). Since the error arose as a result of state action, as so many things nowadays seem to do, we shall assume jurisdiction as the First District did in Jackson v. State, 301 So.2d 490 (Fla. 1st DCA 1974), and treat this as a Hollingshead appeal. Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967).

This indigent Appellant was ordered, as a condition of her probation, to pay court costs. This is error. Section 939.15, Florida Statutes (1975), says the county must pay the court costs and two appellate decisions say the sentencing judge cannot require a defendant to pay the costs. Cox v. State, 334 So.2d 568 (Fla.1976); Mack v. State, 305 So.2d 264 (Fla. 3rd DCA 1974). That portion of the probation Order requiring the Defendant to pay $116 court costs is reversed. The Judgment is otherwise affirmed.

AFFIRMED AS MODIFIED.

LETTS and MOORE, JJ., concur.

Concurrence Opinion

MOORE, Judge,

specially concurring:

I concur with the holding of the Court that this matter should be treated as a Hollingshead appeal and that it is error to require an indigent defendant to pay court costs as a condition of probation. I would, however, reverse and remand with instructions that such a requirement is permissible if it is conditioned upon a showing that the defendant becomes solvent during the term of probation. See, Gryca v. State, 315 So.2d 221 (1 DCA 1975).