Holland v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DWAYNE HOLLAND, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) Case No. 2D08-3154 Opinion filed December 30, 2009. Appeal from the Circuit Court for Pinellas County; Pamela A.M. Campbell, Judge. James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. After Dwayne Holland entered a no contest plea, his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm Holland's conviction and sentence. However, we strike $448 in unidentified costs assessed by the circuit court and remand to the circuit court for further proceedings limited to that issue. At sentencing, the circuit court orally imposed "$450 in court costs, $40 to the public defender's office." The written judgment and sentence subsequently imposed costs in a lump sum of $490. The only costs specifically identified in the written judgment and sentence were $2 for the Criminal Justice Education Fund and a $40 Indigent Criminal Defense Fee under section 27.52, Florida Statutes (2007). The circuit court provided no statutory basis for the rest of the costs. We also note that an additional "$7 charge for the DNA" was orally assessed at sentencing but was not included in the written judgment and sentence. Holland filed a motion to correct sentencing error, but the motion was deemed denied when the circuit court did not rule on it within sixty days. See Fla. R. Crim. P. 3.800(b)(1)(B). On appeal, the State concedes that the circuit court cited no statutory authority for the assessed costs. We cannot determine whether the unidentified costs consist of mandatory costs, discretionary costs that were not properly announced at sentencing, or a combination of both. Costs cannot be imposed without citing to the statutory authority supporting assessment of such costs. McGee v. State, 963 So. 2d 931, 932 (Fla. 2d DCA 2007); Sutton v. State, 635 So. 2d 1032, 1033 (Fla. 2d DCA 1994). Therefore, we affirm Holland's judgment and sentence, but we strike the $448 in unidentified costs and remand for further proceedings limited to that issue. On remand, the circuit court may again impose the stricken costs if it identifies the statutory authority for their assessment. McGee, 963 So. 2d at 932. If any of the costs assessed are discretionary, the court must also provide Holland notice and an opportunity to be heard. Id. Affirmed in part, reversed in part, and remanded with instructions. WALLACE and CRENSHAW, JJ., Concur. -2-