Opinion
No. 86-1694.
June 18, 1987.
Appeal from the Circuit Court, Volusia County, William C. Johnson, Jr., J.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.
McBride appeals that portion of her sentence imposing costs pursuant to section 27.3455, Florida Statutes (1985), as a condition to grant her gain-time. She was convicted of possession of cocaine and marijuana. We quash the imposition of costs.
§ 893.13, Fla. Stat. (1985).
McBride's offenses were committed in April of 1985 and section 27.3455 became effective on July 1, 1985. Ex post facto application of the penalties imposed by this statute is unconstitutional. State v. Yost, 507 So.2d 1099 (Fla. 1987); Gordon v. State, 497 So.2d 661 (Fla. 5th DCA 1986); Miller v. State, 492 So.2d 1191 (Fla. 5th DCA 1986). Although McBride failed to raise this issue below, we have held it may be raised for the first time on appeal. Givens v. State, 501 So.2d 758 (Fla. 5th DCA 1987); Webber v. State, 497 So.2d 995 (Fla. 5th DCA 1986). Contra. Vogtsberger v. State, 502 So.2d 984, 985 (Fla. 1st DCA 1987); Johnson v. State, 495 So.2d 188 (Fla. 2d DCA 1986).
We therefore quash that portion of the sentence imposing costs.
AFFIRMED IN PART; QUASH IMPOSITION OF COSTS.
COBB, J., concurs.
COWART, J., concurs specially with opinion.
I concur in the majority opinion quashing that portion of the sentence imposing costs because of the ex post facto application of section 27.3455, Florida Statutes (1985). Even if the offenses had been committed after the effective date of the statute, I would quash that portion of the sentence imposing costs "as a condition to granting her gain-time." Such a condition violates defendant's equal protection guarantees and penalizes her for being indigent. See the dissent in Outar v. State, No. 86-1713 (Fla. 5th DCA June 18, 1987).