Harris v. StateHarris v. State
Appellant appeals his sentence imposing $200 additional court costs pursuant to section 27.3455, Florida Statutes (1985).1 We reverse.
Immediately after the jury returned a verdict finding appellant guilty of burglary of a conveyance, and in the presence of the jury, the trial court sentenced appellant to five years in the state prison and ordered him to pay $250.25 ($200 pursuant to section 27.3455 and $50.25 court costs). In his initial brief on appeal, appellant contended that the imposition of costs pursuant to section 27.3455 constituted an impermissible ex post facto application of the law
Because it was apparent from the record that appellant was not given notice and an opportunity to object to the imposition of costs, this court sua sponte directed the parties to provide supplemental briefs, addressing the applicability of this court‘s recent decision in Lawton v. State, 492 So.2d 404 (Fla. 1st DCA 1986), to these facts. Lawton, which was decided during the pendency of this appeal, requires that a defendant be given notice and an opportunity to be heard prior to the imposition of costs pursuant to section 27.3455 and requires that indigency be determined at the time of sentencing. Next, this court inquired, if it should reverse and remand for resentencing pursuant to Lawton, would it be ex post facto violation for the trial court to apply the newly amended section 27.3455? See Chapter 86-154, § 1, Laws of Florida.2
The parties are in agreement that implicit in this court‘s Lawton decision, is the notion that a contemporaneous objection is unnecessary to preserve an argument against the imposition of court costs against an indigent defendant when the defendant has not been provided adequate notice and an opportunity to object. Nevertheless, the state urges us not to encourage this erosion of the contemporaneous objection rule because it will inevitably lead to judicial inefficiency. Instead, the state urges this court to decline to consider these issues for the first time on direct appeal with the proviso that appellant may raise them in a motion for post-conviction relief.
While it might be argued that the trial court‘s oral imposition of costs provided sufficient notice and an opportunity to object, we are bound by the Florida Supreme Court‘s decision in Jenkins v. State, 444 So.2d 947 (Fla. 1984), wherein the court ruled under similar circumstances that the trial court‘s oral imposition of costs at the sentencing hearing does not provide adequate notice and an opportunity to object.
In this case, the trial court adjudged appellant insolvent for the purpose of appointing counsel, but made no finding of appellant‘s ability to pay the costs despite his presumptive indigency. Alternatively, the trial court failed to give appellant a term of community service in lieu of the payment of costs. Accordingly, we hold that on the basis of our Lawton decision, imposition of the costs in this case was reversible error even absent a contemporaneous objection. While it is true that appellant may raise these issues via a motion for postconviction relief, Ivie v. State, 497 So.2d 931 (Fla. 2d DCA 1986), we are not precluded from addressing these issues on direct appeal under the circumstances.
Accordingly, we vacate the trial court‘s assessment of court costs because the record fails to show notice of, and an opportunity to object to, the imposition of court costs. At resentencing, the parties have agreed that there would be no ex post facto violation if the trial court applies the newly amended section 27.3455.
SHIVERS and ZEHMER, JJ., concur.