DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOMINIC NATHANIEL DAVIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-2500
[October 31, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 14010832 CF10A.
Carey Haughwout, Public Defender, and Brad R. Schlesinger, 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.
CONFESSION OF ERROR
PER CURIAM.
Dominic Davis appeals his conviction and sentence for felony battery
with a weapon. Davis argues the written jury instructions were defective
for failing to include “and” between the two numbered elements
constituting felony battery. We affirm that issue without comment.
However, Davis also appeals the amended portion of his sentence imposing
a public defender fee in excess of $100, which the State correctly concedes
was improper. We agree, and reverse and remand on that point.
The trial court sentenced Davis to twenty years in prison and imposed
a $400 public defender fee. 1 Davis moved to correct the public defender
fee amount under Florida Rule of Criminal Procedure 3.800(b)(2), and
asked the trial court to strike the $400 fee and impose the $100 fee
required under section 938.29(1)(a), Florida Statutes (2018), or hold a
1 Davis does not dispute the $50 public defender application fee. § 938.29(1)(a), Fla. Stat.
(2018).
hearing to determine the proper fee amount. The trial court granted
Davis’s motion, struck the $400 fee, and imposed a $300 fee. On appeal,
Davis asks this court to require the trial court to strike the public defender
fee, and either impose the $100 fee or hold a hearing. We agree.
“[T]he imposition of a public defender fee that exceeds the statutory
minimum can only occur ‘upon a showing of sufficient proof of higher fees
or costs incurred.’” Alexis v. State,
211 So. 3d 81, 82 (Fla. 4th DCA 2017)
(quoting § 938.29(1)(a)). From this evidence, the trial court is required to
make factual findings that such higher fees or costs were actually
incurred. See id. at 82-83. Additionally, when a trial court exercises its
discretion to impose a public defender fee exceeding the statutory
minimum, the fee “must be orally pronounced at sentencing because such
costs may not be imposed without affording the defendant notice and an
opportunity to be heard.” Id. at 83 (quoting Mills v. State,
177 So. 3d 984,
985 (Fla. 4th DCA 2010)).
Accordingly, we reverse the amended public defender fee in the amount
of $300 because the trial court failed to make any factual findings as to
the fee amount. Moreover, the trial court failed to provide Davis with
notice or an opportunity to contest the amount. We remand to correct
those errors. See
id.
Affirmed in part; reversed in part and remanded for further proceedings
consistent with this opinion.
GERBER, C.J., LEVINE and KLINGENSMITH, JJ., concur
* * *
Not final until disposition of timely filed motion for rehearing.
2
