Cortez Ford v. State of Florida ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CORTEZ FORD, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1460
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed July 1, 2015.
Petition alleging ineffective assistance of appellate counsel -- Original Jurisdiction.
Cortez Ford, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney
General, Tallahassee, for Respondent.
PER CURIAM.
This petition presents a timely claim of ineffective assistance of appellate
counsel. We find merit in one of the claims raised.
At sentencing, the trial court failed to orally pronounce the imposition of a
$1,050.00 fine pursuant to section 775.083, Florida Statutes, and a $52.50 five percent
surcharge pursuant to section 938.04. The fine authorized by section 775.083(1) is
discretionary and, thus, it was error for the trial court to impose the fine without
specifically pronouncing the fine at the sentencing hearing. See Pullam v. State, 55 So.
3d 674, 675 (Fla. 1st DCA 2011). Because this fine was erroneously imposed, the
surcharge under section 938.04, which is based on the amount of fine, was also
erroneously imposed. See Nix v. State, 84 So. 3d 424, 426 (Fla. 1st DCA 2012).
Accordingly, we strike these costs and remand for the trial court to enter a
corrected judgment. On remand, the court may reimpose the discretionary fine and
surcharge after following the appropriate procedures. Peterson v. State, 151 So. 3d
562 (Fla. 1st DCA 2014); accord, Williams v. State, 82 So. 3d 186 (Fla. 1st DCA
2012) (reversing judgment for fines, costs and surcharges “because the trial court failed
to delineate the discretionary fine(s) when announcing at sentencing that it would
impose $1,522.50 in costs and fines,” and stating that the assessments may be
reimposed on remand after giving the defendant notice and following the proper
procedure); see also Oliver v. State, 75 So. 3d 349, 350 (Fla. 1st DCA 2011) (reversing
the imposition of discretionary fines and authorizing the court to reimpose the fines on
remand “by following the proper procedure, which includes individually announcing
each assessment and the authority for each.”).
WOLF, THOMAS, and OSTERHAUS, JJ., CONCUR.
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