Opinion
No. 93-04031.
December 29, 1993.
Appeal from the Circuit Court for Polk County, Susan W. Roberts, J.
Jerry Lewis appeals the summary denial of his rule 3.850 motion. Lewis sought in the trial court to strike public defender fees and lien, alleging that he was not advised at his sentencing hearing of the right to contest the amount of the fees or his ability to pay. The trial court denied his motion, reasoning that Lewis should have resolved this issue in a direct appeal. We reverse.
This court has recognized a right to utilize a motion for postconviction relief to challenge the lack of notice and opportunity to contest the trial court's assessment of fees. See Townsend v. State, 604 So.2d 885 (Fla. 2d DCA 1992). Because the trial court's order of denial does not refute Lewis's claim that the fees were assessed improperly, we reverse and remand this case to the trial court. On remand, the trial court (1) again may deny the relief requested and attach the portion of the record refuting this claim to its order of denial; or (2) conduct an evidentiary hearing.
Reversed and remanded with directions to the trial court.
RYDER, A.C.J., and PARKER and ALTENBERND, JJ., concur.