J. W. v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledMay 6, 2020
Docket2D18-2897
StatusPublished
๐ฐ News Coverage: Read the LAWS.com news report on this case
Full Opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
J.W., )
)
Appellant, )
)
v. ) Case No. 2D18-2897
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed May 6, 2020.
Appeal from the Circuit Court for Polk
County; Mark H. Hofstad, Judge.
Howard L. Dimmig, II, Public Defender, and
Matthew D. Bernstein, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.
KELLY, Judge.
J.W. appeals from the disposition order that finds he committed the
delinquent acts of burglary of a dwelling and petit theft, withholds an adjudication of
delinquency, and places him on probation. We affirm the disposition order without
elaboration, but we reverse the order, in part, which imposes $100 for the services of
the public defender under sections 985.033 and 939.29, Florida Statutes (2018).
J.W. filed a motion to correct disposition order under Florida Rule of
Juvenile Procedure 8.135(b)(2) challenging the public defender fee. The motion was
deemed denied upon the expiration of time for judicial action. We strike the $100 fee
because the trial court failed to give J.W. notice of his right to a hearing to contest the
fee when it was imposed at sentencing. See ยง 939.29(5); Davis v. State, 286 So. 3d
898, 899 (Fla. 2d DCA 2019); Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA
2018). The court may reimpose the $100 public defender fee after proper notice and
the opportunity for J.W. to be heard on that issue. See Gedehomme v. State, 160 So.
3d 533, 534 (Fla. 2d DCA 2015); Neal v. State, 62 So. 3d 1277, 1277-78 (Fla. 2d DCA
2011).
In his motion, J.W. also challenged the imposition of $150 for the cost of
prosecution. However, because J.W. did not object when the cost was announced at
sentencing, the matter was waived for appellate review. See Rivera v. State, 34 So. 3d
207, 209 (Fla. 2d DCA 2010) (holding that a motion to correct sentencing error will not
preserve the imposition of prosecution costs for appellate review where the trial court
orally pronounces the cost and no objection was raised).
Accordingly, we affirm the disposition order but strike the $100 public
defender fee and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.