Jenkins v. StateJenkins v. State
Jenkins was convicted of aggravated battery and carrying a concealed firearm. He contends the trial court erred in assessing costs of $10.00 for the Crimes Compensation Fund and $2.00 for the Law Enforcement Training Fund in each judgment entered against him. Jenkins further contends the trial court erred in excluding certain testimony as hearsay in the aggravated battery charge.
Of its own motion, the Court voted to consider this proceeding en banc.
A majority determined that the proposed opinion in this case conflicted with Mobley v. State, 414 So.2d 25 (Fla. 1st DCA 1982), but then agreed to recede from Mobley and adopt the proposed opinion in this case.
The costs issue was not presented to the trial judge. At the sentencing proceeding the judge, in open court and before Jenkins and his counsel, imposed the costs. He then found Jenkins indigent and appointed the public defender to represent him on appeal. It is not apparent that these are inconsistent.
We recede from our decision in Mobley v. State. A defendant who objects to the imposition of costs under
The trial court must find that the defendant is wholly unable to pay the $12.00 in costs and, if it so finds, shall discharge the defendant from the payment of the $12.00. See
We recognize that our decision may conflict with Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981); Ivory v. State, 419 So.2d 695, (Fla. 2d DCA 1982); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); and Johnson v. State, 419 So.2d 412 (Fla. 2d DCA 1982). It appears, however, that in each of these cases the trial court may have found the defendant insolvent and unable to pay the costs assessed under
Two points are raised against the aggravated battery conviction which require discussion.
Jenkins’ defense was that the victim, Thorne, attacked Jenkins with a knife, requiring Jenkins to shoot Thorne in self-defense. Thorne denied the knife attack. A witness, Furlough, testified that shortly before the incident Thorne sat next to Furlough, then approached Jenkins at a “slow run.” Thorne had his knife out when sitting with Furlough, but Furlough was unable to see whether it was out when Thorne approached Jenkins.
Furlough was prepared to testify that Thorne had stated, “I‘m going to straighten Keith (Jenkins) up.” This was excluded as hearsay. This was error. The statement, while clearly hearsay, was admissible.
We need not decide whether the use of incorrect penalty instructions is reversible error, but on retrial the appropriate instruction for a case with a mandatory minimum should be used.
No error is asserted in Jenkins’ conviction for carrying a concealed firearm and it is affirmed.
The assessment of costs issue is affirmed and the judgment of conviction for aggravated
ROBERT P. SMITH, Jr., C.J., and McCORD, BOOTH, LARRY G. SMITH, SHAW, JOANOS, THOMPSON and WIGGINTON, JJ., concur.
ERVIN, J., specially concurs.
SHIVERS, J., dissents in part and concurs in part with opinion with which WENTWORTH, J., concurs.
SHIVERS, Judge, dissenting in part and concurring in part:
I respectfully dissent on assessment of costs against defendant.
The majority‘s logical opinion is almost persuasive. However, for the following reasons I do not agree that these court costs may be assessed against an insolvent defendant.
939.05 Insolvent defendant discharged without payment of costs. — In all cases less than capital, when it appears from due proof made in open court that the person convicted is wholly unable to pay costs, and that the judgment has in other respects been complied with, the court before which such person was convicted may discharge him without the payment of costs.
939.15 Costs paid by county in cases of insolvency. — When the defendant in any criminal case ... has been adjudged insolvent ... the costs allowed by law shall be paid by the county....
(4) All courts created by
Art. V of the State Constitution shall assess $2 as a court cost against every person convicted for violation... . (emphasis supplied)
960.20 Additional costs. — When any person, ... is convicted of, any felony or misdemeanor under the laws of this state, there shall be imposed as an additional cost in the case, in addition and prior to any other cost required to be imposed by law, the sum of $10. The clerk of the court shall collect and forward $9 of each $10 collected to the Treasurer, to be deposited in the Crimes Compensation Trust Fund. The clerk shall retain the remaining $1 of each $10 collected as a service charge of the clerk‘s office. Under no condition shall a political subdivision be held liable for the payment of this sum of $10.
There appears to be no reason to label the $10 costs imposed by
The majority provides that a defendant who objects to the payment of costs under
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AFFIDAVIT OF INSOLVENCY
Affiant being first duly sworn on oath deposes and says that he is totally insolvent and unable to pay the charges, costs, or fees in this cause, either in whole or in part; that he had no property or other means of payment either in his possession or under his control and that he has not divested himself of any property, either real or personal, for the purpose of receiving benefit from this oath; that he, at this time, is wholly without funds and unless this Court makes and enters an Order adjudging him, this defendant, insolvent, he will be deprived of his rights under the law. This affiant offers himself up to the Court for the purpose of further examination into his insolvency. (emphasis supplied)
On September 1, 1981, the Court entered an Order of Insolvency and Appointment of Public Defender in which it was
... .
ORDERED and ADJUDGED that the defendant be declared to be totally insolvent.
... .
At the sentencing hearing when Mrs. Lewis, defendant Keith Jenkins’ attorney, asked for the appointment of the Public Defender for purposes of appeal, Mr. Jenkins again indicated to the Court he had no money.
THE COURT: Has your financial situation changed in any way?
MRS. LEWIS: Do you have any money?
MR. JENKINS: No.
THE COURT: I will appoint the Public Defender. I know his financial condition has not changed. I will appoint the Public Defender.
MRS. LEWIS: Thank you, Your Honor.
... .
Costs should not be assessed against a defendant who has been adjudged to be insolvent. See, Jones v. State, 389 So.2d 1092 (Fla. 4th DCA 1980); Ortiz v. State, 420 So.2d 923 (Fla. 2d DCA, 1982). In the case sub judice the defendant Keith Jenkins has been adjudged to be insolvent and this insolvency affirmed at the sentencing hearing. I would reverse the assessment of the $10 and $2 costs against the defendant. However, I agree that the cause should be reversed and remanded for a new trial on the aggravated battery charge.
ERVIN, Judge, specially concurring.
Although I concur with the majority in affirming the cost assessment of $12, I would not on this record recede from our prior opinion in Mobley v. State, 414 So.2d 25 (Fla. 1st DCA, 1982). As noted in the majority‘s opinion, Jenkins failed to object to the imposition of the costs at the time of the sentencing. He should not be heard to complain for the first time now on appeal that its assessment is invalid. Cf. Spurlock v. State, 420 So.2d 875 (Fla. 1982).
I would reserve for another day the disposition of the question on its merits.