DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TRAVIS T. BRINSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2792
[September 2, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Dan L. Vaughn, Judge; L.T. Case No.
312018CF000084A.
Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Travis Brinson appeals his conviction for possession of cocaine and the
trial court’s denial of his motion to correct sentence. The trial court
sentenced him to eighteen months of probation and imposed the following
court costs: a $3.50 clerk fee, a $50.00 public defender’s application fee,
$202.80 in public defender fees, and $150.00 for the county drug abuse
trust fund. Brinson argues that the trial court erred when imposing
certain court costs. We affirm his conviction without comment, but find
that $102.80 of the public defender’s fee, and the $150.00 county drug
abuse trust fund fee, constitute error.
This court reviews a motion to correct a sentencing error de novo
because it presents a purely legal issue. See Willard v. State,
22 So. 3d
864, 864 (Fla. 4th DCA 2009).
Fees and costs relating to a defendant’s representation by the public
defender’s office are governed by section 938.29, Florida Statutes (2019).
Defendants are required to pay a statutory minimum fee of $100.00 when
charged with a felony offense. See § 938.29(1)(a), Fla. Stat. “Because these
fees are statutorily mandated, notice and a hearing are not required before
imposition of the minimum amount.” Alexis v. State,
211 So. 3d 81, 82
(Fla. 4th DCA 2017).
To set a public defender’s fee higher than the minimum amount, the
trial court must have “sufficient proof of higher fees or costs incurred.”
See § 938.29(1)(a), Fla. Stat. A public defender’s fee that exceeds the
statutory minimum “must be orally pronounced at sentencing because
such costs may not be imposed without affording the defendant notice and
an opportunity to be heard.” Davis v. State,
256 So. 3d 902, 902 (Fla. 4th
DCA 2018) (quoting
Alexis, 211 So. 3d at 83). In this case, the trial court
did not orally pronounce the addition of $102.80 to the public defender fee
at sentencing, thus denying Brinson notice and an opportunity to contest
the increase. See
id.
Additionally, when a defendant is convicted of a drug-related crime, the
trial court may assess fees for the county drug abuse trust fund. See §
938.23, Fla. Stat. (2019); Desrosiers v. State,
286 So. 3d 297, 300 (Fla. 4th
DCA 2019). Before imposing this fee, however, the trial court must first
find the defendant has the ability to pay it. See Gunn v. State,
818 So. 2d
681 (Fla. 4th DCA 2002). As to this fee, the trial court did not make the
required finding as to Brinson’s ability to pay. See
id.
Accordingly, we reverse the county drug abuse trust fund fee and that
part of the public defender’s fee above the statutory minimum and remand
for further proceedings. On remand, the trial court may increase the
public defender’s fee and impose the county drug abuse fund fee if the
appropriate factual findings are made at a new hearing. See Migliore v.
State,
953 So. 2d 754, 754 (Fla. 2d DCA 2007);
Desrosiers, 286 So. 3d at
300.
Affirmed in part, reversed in part, and remanded.
WARNER, MAY and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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