State v. Bennington, 384 So. 2d 42

PER CURIAM.

The State appeals the denial of its oral motion to tax costs against the appellee made pursuant to Section 939.01, Florida Statutes (1977). We affirm.

Upon proper motion, Section 939.01 requires the court to include the appropriate costs of prosecution in a judgment rendered against a convicted person. However, the defendant is entitled to prior notice and an opportunity to prepare and be heard on the issue. Cf. Reeves v. State, 372 So.2d 1016 (Fla. 2nd DCA 1979) (probationer entitled to notice prior to imposing condition of restitution). Due process requires the motion to be in writing and served on the defendant a reasonable time before the hearing on the motion. Fla.R.Crim.P. 3.060.

The failure of the State to file a written motion, giving the defendant an opportunity to prepare and be heard concerning the motion deprived the defendant of procedural due process. Accordingly, the trial court correctly denied the motion.

AFFIRMED.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.

Case Details

Case Name: State v. Bennington

Court Name: District Court of Appeal of Florida

Date Published: May 21, 1980

Citations: 384 So. 2d 42; 1980 Fla. App. LEXIS 16207; No. 79-1892

Docket Number: No. 79-1892

Court Abbreviation: Fla. Dist. Ct. App.