JACQUELINE RIVERA v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACQUELINE RIVERA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-1786
[March 30, 2022]
Appeal from the County Court for the Nineteenth Judicial Circuit, St.
Lucie County; Kathryn M. Nelson, Judge; L.T. Case No. 2019MM000691
A.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant appeals her conviction of battery, raising several issues. We
find that appellant’s constitutional right to a unanimous jury verdict was
not violated because the incident involved a single criminal episode.
Cherfrere v. State, 277 So. 3d 611, 614-15 (Fla. 4th DCA 2019). Thus,
no error occurred, fundamental or otherwise. We agree with appellant
that the trial court lacked jurisdiction to file its written order of probation
after the record had been transmitted on appeal and, therefore, we
remand for reentry of the written order of probation. Fla. R. App. P.
9.600(a); Escobar v. State, 189 So. 3d 1029, 1031 (Fla. 4th DCA 2016);
Witham v. State, 311 So. 3d 34, 34 (Fla. 4th DCA 2021).
Additionally, we find that the five conditions appellant challenges were
general conditions of probation and thus did not require oral
pronouncement. State v. Hart, 668 So. 2d 589, 592 (Fla. 1996); Metellus
v. State, 310 So. 3d 90, 92 (Fla. 4th DCA 2021). These conditions
required that appellant pay supervisory costs; not change her residence,
phone number, employment, or leave the jurisdiction of the court
without consent; notify her probation officer of arrests, citations, and
notices to appear; not report for appointments under the influence; and
not consume illegal substances or visit places where illegal substances
are sold, dispensed, or used. We agree, however, that the trial court
erred in imposing supervision costs above $40 in the absence of an oral
pronouncement. As such, we reduce the cost of supervision to $40 a
month. Paris v. State, 47 Fla. L. Weekly D445 (Fla. 4th DCA Feb. 16,
2022); § 948.09(1)(b), Fla. Stat. (2020).
We further find that appellant waived her right to challenge the $196
transcript fee and $500 public defender fee, as defense counsel
specifically requested both these fees during the sentencing hearing in
appellant’s presence without objection. See Kitchen v. State, 965 So. 2d
252, 253 (Fla. 4th DCA 2007) (finding waiver based on defense counsel’s
affirmative agreement). An award of public defender fees need not be
supported by evidence if a defendant affirmatively agrees to pay the
requested amount. Icon v. State, 322 So. 3d 117, 119 (Fla. 4th DCA
2021). Here, appellant affirmatively agreed to the fees through her
counsel. Any act by the attorney in a proceeding will be accepted as the
act of the client. Fla. R. Gen. Prac. & Jud. Admin. 2.505(h); see also
State v. Abrams, 350 So. 2d 1104, 1105 (Fla. 4th DCA 1977) (“The acts of
an attorney on behalf of a client will be binding on the client even though
done without consulting him and even against the client’s wishes.”);
Roldan v. State, 676 So. 2d 1029, 1030 (Fla. 3d DCA 1996) (finding
defendant did not preserve challenge to costs where “defense counsel
affirmatively indicated that he had no objection to the costs imposed”).
Any claim of insufficient evidence under section 938.29(1)(a), Florida
Statutes (2020), or lack of notice of the right to a hearing under Florida
Rule of Criminal Procedure 3.720(d)(1) was invited error more
appropriately addressed in a rule 3.850 motion. See Louidor v. State,
162 So. 3d 305, 313 (Fla. 3d DCA 2015).
We agree that the basis for a $223 “MM cost” is unclear from the
record and thus remand for clarification. Colebrook v. State, 320 So. 3d
787, 788 (Fla. 4th DCA 2021). We strike the $25 investigative costs
because the state did not request such costs prior to the judgment. §
938.27(1), Fla. Stat. (2020). In accordance with Richards v. State, 288
So. 3d 574, 576-77 (Fla. 2020), the state is not permitted to seek this
cost on remand. We reverse the $100 prosecution costs, because the
state did not seek or prove costs above the statutory maximum of $50. §
938.27(8), Fla. Stat. (2020). We therefore remand for the trial court to
impose $50 in prosecution costs in accordance with the statute, or to
impose additional costs if sufficient findings are made. Bartolone v.
State, 327 So. 3d 331, 336 (Fla. 4th DCA 2021).
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In summary, we affirm the probation conditions except we remand for
reentry of the written order of probation. We reduce the cost of
supervision to $40 a month; remand for clarification of the $223 “MM
cost”; strike the investigative cost; and reverse the $100 prosecution cost
and remand for entry of a $50 prosecution cost unless the state seeks
and proves a greater amount.
Affirmed in part, reversed in part, and remanded with instructions.
WARNER, LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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