Opinion
Case Nos. 2D19-4461 2D19-4463
01-22-2021
James Lawrence WILSON, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
These appeals have been consolidated for purposes of this opinion. In appellate case no. 2D19-4461, James Wilson challenges his judgments and sentences in lower court case no. 19-CF-610. And in appellate case no. 2D19-4463, Wilson challenges his judgments and sentences in lower court case no. 19-CF-335. Wilson was ordered to pay public defender fees in the amount of $100 pursuant to section 938.29(1), Florida Statutes (2018), in each case. He was also ordered to pay investigative costs in each case pursuant to section 938.27(1). After filing the notices of appeal, Wilson filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in each lower court case. Wilson asserted in the motions that the $100 public defender fees imposed pursuant to section 938.29 must be stricken due to the trial court's failure to advise him of his right to contest the fees at a hearing as required by Florida Rule of Criminal Procedure 3.720(d)(1) and Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018). Wilson also argued that the investigative costs imposed pursuant to section 938.27(1) must be stricken. The trial court denied the motions.
Counsel filed a brief in each appellate case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the trial court erred in denying the motions to correct sentencing errors. See Hamiter v. State, 290 So. 3d 1003, 1006 (Fla. 2d DCA 2020) (stating that counsel may challenge a trial court's denial of a rule 3.800(b) motion to correct minor sentencing errors, such as errors concerning costs and fees, in an Anders "no merit" brief). Counsel's contentions with regard to the investigative costs are without merit and do not warrant further comment. However, we agree that the trial court erred in denying Wilson's motions to correct sentencing errors to the extent that those motions challenged the imposition of the public defender fees. This court's precedent dictates that before the statutory minimum public defender fee of $100 for felony cases can be imposed, the defendant must be notified of his or her right to a hearing to contest the fee. See Newton, 262 So. 3d at 849-50. But see Alexis v. State, 211 So. 3d 81, 82 (Fla. 4th DCA 2017) (holding that because the minimum public defender fee of $100 for each felony case is mandated by statute, "notice and a hearing are not required before imposition of the minimum amount" (citing Odom v. State, 187 So. 3d 324, 325 (Fla. 1st DCA 2016) )); Mills v. State, 177 So. 3d 984, 988 (Fla. 1st DCA 2015) (en banc) (holding that notice and a hearing are not necessary before the imposition of the minimum public defender fee mandated by section 938.29(1) for felony cases).
The State filed responses to the Anders briefs as directed by this court. See Hamiter, 290 So. 3d at 1006 n.3.
We therefore reverse the portion of the fee order entered as part of Wilson's sentence in lower court case no. 19-CF-610 that imposed the public defender fee of $100 pursuant to section 938.29(1). The corresponding judgment lien is also reversed to the extent that it assessed the $100 public defender fee. Likewise, we reverse the portion of the fee order entered as part of Wilson's sentence in lower court case no. 19-CF-335 that imposed the public defender fee of $100 pursuant to section 938.29(1). And the corresponding judgment lien entered in that case is reversed to the extent that it assessed the $100 public defender fee. On remand, the trial court may reimpose a public defender fee in each case after providing Wilson with notice of his right to contest the fee at a hearing. See Geary v. State, ––– So.3d ––––, ––––, 45 Fla. L. Weekly D2335, D2335 (Fla. 2d DCA Oct. 14, 2020). And as we have done previously in cases involving this issue, we certify conflict with the Fourth District's decision in Alexis and the First District's decision in Mills. Wilson's judgments and sentences are otherwise affirmed in all respects.
Affirmed in part; reversed in part; remanded; conflict certified.
CASANUEVA and LABRIT, JJ., Concur.