ROLAND FOURNIER v. STATE OF FLORIDA , 244 So. 3d 307 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROLAND FOURNIER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-2922
[April 18, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 13-004126-
CF10A and 15-005183-CF10A.
Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Appellant Roland Fournier appeals the trial court’s order revoking his
probation in one case, an order determining the amount of restitution in
another case, and the orders imposing public defender fees in both cases.
Additionally, Appellant appeals a hearsay ruling as to one ground alleged
for revoking his probation and the sufficiency of evidence pertaining to
another ground alleged for revoking his probation. We affirm, without
discussion, the trial court’s evidentiary rulings on the conditions of
probation violated. However, as properly conceded by the State on appeal,
we agree the trial court erred in failing to enter an order determining which
conditions of probation were violated, determining the amount of
restitution, and imposing public defender fees exceeding the minimum
amount allowed by statute. We therefore affirm in part, reverse in part,
and remand for further proceedings.
Background
Appellant was charged with burglary of a dwelling and petit theft. After
pleading no contest to the charges, Appellant was sentenced to two years
of drug offender probation with $300 in restitution for the burglary charge
and one day of probation for petit theft.
Appellant’s probation officer filed an affidavit of violation of probation
(“VOP”) alleging, among other things, that Appellant tested positive for
morphine and cannabis as shown by an analysis of a urine drop obtained
from Appellant a few weeks earlier. Subsequently, Appellant was charged
with new offenses of uttering a forged instrument and petit theft.
Appellant’s probation officer filed an amended affidavit of VOP
including additional allegations, among which was that Appellant had
violated his probation by changing his residence without first procuring
her consent. It does not appear the new law violations relating to the
uttering a forged instrument and petit theft charges were included in the
amended VOP affidavit.
A VOP hearing was conducted. The trial court determined that
Appellant had violated his probation with respect to the positive drug test.
The trial court also found Appellant violated his probation by moving from
his residence without permission. Upon determining that Appellant
violated probation, the trial court revoked Appellant’s probation and
sentenced him to five years in prison with credit for time served for the
burglary. No written order was entered stating the trial court’s findings
regarding what condition or conditions of probation were violated.
After the VOP proceeding, Appellant entered no contest pleas to the new
charges of uttering a forged instrument and petit theft. For those charges,
he was sentenced to five years in prison concurrent to the burglary
sentence. The State moved for $850 of restitution for the uttering charge,
to which defense counsel objected. The trial court orally ruled that it
would order restitution, but reserved as to the amount. The trial court
noted that if the parties could not reach an agreement as to the amount,
there would be a hearing. Despite this oral pronouncement, however, the
trial court entered a written restitution order for $850. The trial court also
entered an order imposing a $150 public defender fee for the burglary case
and a $300 public defender fee for the uttering case.
Appellant filed the instant appeal as to both the burglary and uttering
cases. During the pendency of this appeal, Appellant filed a rule
3.800(b)(2) motion to correct sentencing error in the uttering case, seeking
to strike the written order determining restitution in the amount of $850,
on the basis that the trial court orally pronounced that it would reserve
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ruling as to the amount of restitution and there was no subsequent
stipulation or hearing on the amount. It does not appear the trial court
ruled on the rule 3.800(b)(2) motion. Appellant also filed a rule 3.800(b)(2)
motion to correct sentencing error in the burglary case, requesting that
the trial court enter a written order setting forth the specific conditions of
probation violated to justify revocation of his probation. The record does
not reflect that the second motion was ruled upon either. Finally,
Appellant filed a third rule 3.800(b)(2) motion to correct sentencing error
in both cases regarding the public defender fees imposed and seeking to
reduce the fees to the statutory minimum amount of $100 or to provide
notice and an opportunity to be heard if the court considered imposing a
fee in excess of the statutory minimum. As with the other rule 3.800(b)(2)
motions, it does not appear the trial court entered a ruling on the third
motion.
Appellate Analysis
The Restitution Order
When the State moved for $850 in restitution in the uttering case,
defense counsel objected. The trial court orally ruled that it would order
restitution, but reserve ruling as to the amount. The trial court noted that
if the parties could not reach an agreement as to the amount, there would
be a hearing. Despite this oral pronouncement, however, the trial court
entered a written restitution order for $850. The record does not reflect
that Appellant stipulated to the restitution amount, nor does it reflect any
evidence was presented by the State on this issue at the hearing. During
the pendency of this appeal, Appellant filed a rule 3.800(b)(2) motion
seeking to strike the $850 award, given the trial court’s oral
pronouncement that it would reserve ruling as to the amount. It does not
appear the trial court ruled on the motion, and it is therefore deemed
denied. Fla. R. Crim. P. 3.800(b)(2)(B).
On appeal, Appellant correctly argues that the trial court erred in
entering a written order determining the amount of restitution after orally
pronouncing that it would reserve ruling on the amount of restitution
pending the parties’ agreement, or alternatively, conducting a hearing as
to the amount. It is well settled that “a court’s oral pronouncement of
sentence controls over the written document.” Ashley v. State, 850 So. 2d
1265, 1268 (Fla. 2003). The State agrees that the trial court erred in this
regard. Appellant is entitled to notice and an opportunity to be heard on
the matter of the amount of restitution. See, e.g., Iaconetti v. State, 869
So. 2d 695, 700 (Fla. 2d DCA 2004) (“It is reversible error to impose
restitution without notice or hearing.”). Therefore, we reverse the order
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determining the amount of restitution and remand the case for the trial
court to conduct an appropriate hearing. See Boyd v. State, 45 So. 3d 557,
560 (Fla. 4th DCA 2010).
Written Order Revoking Probation
Next, Appellant correctly argues the trial court erred when it failed to
enter a written order stating the specific conditions violated to justify
revocation of probation. The State agrees. “If a trial court revokes a
defendant’s probation, the court is required to render a written order
noting the specific conditions of probation that were violated.” King v.
State, 46 So. 3d 1171, 1172 (Fla. 4th DCA 2010). The matter was
preserved for review when Appellant filed a rule 3.800(b)(2) motion
requesting the trial court enter a written order setting forth the specific
conditions violated, but the motion was not ruled upon within sixty days
and is therefore deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B). Because
the order of revocation of probation in the burglary case does not specify
the conditions Appellant violated, we remand for the trial court to amend
the order to include the conditions that it found were violated at
Appellant’s VOP hearing. See King, 46 So. 3d at 1172.
Order Imposing Public Defender Fees
Lastly, Appellant correctly argues the trial court erred when it imposed
public defender fees above the statutory minimum without notice and an
opportunity to be heard. The State agrees. “[A] public defender fee amount
that exceeds the statutory minimum fee [is] discretionary and accordingly
‘must be orally pronounced at sentencing because such costs may not be
imposed without affording the defendant notice and an opportunity to be
heard.’” Alexis v. State, 211 So. 3d 81, 83 (Fla. 4th DCA 2017) (quoting
Mills v. State, 177 So. 3d 984, 985 (Fla. 1st DCA 2015)). “The trial court
must announce at sentencing the amount of the lien, as well as ‘the
accused’s right to a hearing to contest the amount of the lien.’” Id. (quoting
Fla. R. Crim. P. 3.720(d)(1)). For felony charges, the trial court is
mandated to impose a minimum public defender fee of $100. See id;
§ 938.29(1)(a), Fla. Stat. (2016).
In this case, the trial court entered an order imposing a $150 public
defender fee for the burglary case and a $300 public defender fee for the
uttering case without providing Appellant an opportunity to contest the fee
or advising him of his right to a hearing on same. Appellant filed a rule
3.800(b)(2) motion to correct sentencing error in both cases regarding the
public defender fees imposed, and seeking to reduce the fee to the
statutory minimum amount of $100 or to provide notice and an
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opportunity to be heard if the court considered imposing a fee in excess of
the statutory minimum. However, the trial court did not rule on the
motions and therefore they are deemed denied. Fla. R. Crim. P.
3.800(b)(2)(B).
We reverse the orders imposing the public defender fees and “remand
to the trial court to reduce the public defender fee[s] to the statutorily
required $100 or to hold a hearing with proper notice to obtain evidence
in support of a public defender fee in an amount greater than the statutory
minimum.” Alexis, 211 So. 3d at 83.
Having determined that two of the issues Appellant raised on appeal
did not demonstrate reversible error, but three of the issues raised did, we
affirm in part, reverse in part, and remand for proper orders to be entered
and required hearings to be conducted.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
GERBER, C.J., and TAYLOR, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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