IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
GERALD WAYNE SIMMONS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4411
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed August 16, 2016.
An appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.
Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Samuel Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
We affirm without comment Appellant’s conviction and sentence for
burglary of a dwelling with a dangerous weapon and dealing in stolen property by
trafficking. We accept the State’s proper concession that the trial court erred in
imposing a discretionary fine, surcharge, and imposition of a $300 public defender
lien. For the reasons that follow, we strike the specific fine, surcharge, and public
defender lien/fee, and we remand for further proceedings.
The written judgment reflected a discretionary fee of $342.86 pursuant to
section 775.083, Florida Statutes, and a $17.14 surcharge pursuant to section
938.04, Florida Statutes. At sentencing, however, the trial court only pronounced:
“775 court costs, a hundred-dollar Local Governmental Trust, a hundred-dollar
cost of prosecution, and a $300 P.D. fee will be reduced to a judgment.” We find
that this same oral pronouncement was made in another case where we reversed
and remanded this same discretionary fine, surcharge, and public defender lien.
See Odom v. State, 187 So. 3d 324, 325 (Fla. 1st DCA 2016). In Odom, we
concluded that the oral pronouncement was insufficient to notify the appellant of
the discretionary fine and surcharge pursuant to section 775.083, but noted that, on
remand, the court may reimpose the discretionary fine and surcharge after giving
notice and following the proper procedure. Id. at 325. We also held that the trial
court erred in failing to provide the appellant the opportunity to contest imposition
of the public defender lien and application fee in excess of the minimum statutory
amount, and held:
Pursuant to sections 938.29(1)(a) and 27.52, the Legislature has
required the imposition of a minimum fee of $100 for the assistance of
the public defender's office and a $50 application fee. A notice and
hearing are not required before imposition of this minimum lien
amount. Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015) (en
banc). However, because the trial court did not impose the minimum
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here, it was required to give Appellant notice and an opportunity to be
heard before imposition. Therefore, we remand to the trial court to
reduce the public defender lien to the minimum amount or to hold a
hearing with proper notice to Appellant. See Maestas v. State, 76
So.3d 991, 993 (Fla. 4th DCA 2011) (holding that $400 public
defender lien was erroneously imposed and remanding for imposition
of minimum lien amount or a hearing with proper notice).
Id. at 325-26. We find that our recent opinion in Odom controls this issue, and we
reverse and remand for further proceedings, consistent with Odom.
AFFIRMED in part, REVERSED in part, and REMANDED.
B.L. THOMAS, WINOKUR, and JAY, JJ., CONCUR.
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