Alan Osterhoudt, Jr. v. State of Florida , 214 So. 3d 550 ( 2017 )

Supreme Court of Florida
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No. SC16-303
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ALAN OSTERHOUDT, JR.,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[March 30, 2017]
PER CURIAM.
Alan Osterhoudt, Jr., seeks review of the decision of the Fifth District Court
of Appeal in Osterhoudt v. State, 182 So. 3d 16 (Fla. 5th DCA 2015), on the
ground that it expressly and directly conflicts with decisions of the Second District
Court of Appeal in Williams v. State, 198 So. 3d 778 (Fla. 2d DCA 2016), and the
First District Court of Appeal in Nix v. State, 84 So. 3d 424 (Fla. 1st DCA 2012),
regarding whether trial courts must individually pronounce discretionary fees,
costs, and fines at sentencing.1 As explained below, we approve the decisions in
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We decline to
address the non-conflict issue.
Williams and Nix and quash the decision in Osterhoudt to the extent it is
inconsistent with this decision.
Osterhoudt was convicted of manslaughter with a firearm and sentenced to
30 years’ imprisonment for the killing of his wife. At his sentencing hearing, the
trial judge imposed a lump sum of “approximately $956” in fines and court costs.
The written order showed that the total included a $300 discretionary fine and $15
surcharge, which were not individually pronounced at sentencing. Osterhoudt filed
a motion under Florida Rule of Criminal Procedure 3.800(b) and appealed his
judgement and sentence to the Fifth District, arguing that the trial court erred by
denying his motion for mistrial and by not individually pronouncing the
discretionary fine and surcharge at sentencing. Osterhoudt, 182 So. 3d at 17. The
Fifth District affirmed the trial court’s denial of the motion for mistrial and held
that the challenge to the discretionary fine and surcharge was not preserved
because it was only a procedural challenge. Id.
Conversely, the First and Second Districts have held that trial courts must
individually pronounce discretionary fees, costs, and fines at sentencing. In
Williams, 198 So. 3d at 778, the Second District addressed a situation where the
trial court orally pronounced the imposition of an aggregate fine but only later
clarified in the written judgement that “the $1002 aggregate fine was, in part, made
up of a discretionary fine and 5 percent surcharge, totaling $333.” The Second
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District held that, “[b]ecause the trial court did not make [an] oral pronouncement
at the sentencing hearing, the discretionary fine and 5 percent surcharge totaling
$333 cannot stand.” Id. at 779.
Similarly, the First District concluded that “discretionary costs must be
orally pronounced at sentencing because such costs may not be imposed without
affording the defendant notice and an opportunity to be heard.” Nix, 84 So. 3d at
426. The First District held that, on remand, the unpronounced discretionary fees,
costs, and fines may be reimposed “after providing notice to [a]ppellant and
following the proper procedure.” Id.
Consistent with the rulings of the First and Second Districts, we hold that
trial courts must individually pronounce discretionary fees, costs, and fines during
a sentencing hearing to comply with due process requirements. Accordingly, we
quash the Fifth District’s decision insofar as it conflicts with this decision. We
remand this case for resentencing where the trial court may reimpose the
discretionary fine and surcharge after providing notice to Osterhoudt and following
the proper procedure.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fifth District - Case No. 5D13-4277
(Hernando County)
Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Heidt, Bureau
Chief, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach,
Florida,
for Respondent
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