Tundidor v. Ferro , 588 So. 2d 682 ( 1991 )

PER CURIAM.

Tundidor seeks a writ of mandamus to require the trial judge to vacate the assessment of attorney’s fees levied against Tun-didor in a criminal case. Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the petition as an appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).

Tundidor was charged with criminal mischief and battery. The trial judge held him to be indigent and the public defender was charged with his representation. Some months later, the state entered a nolle prosequi of the charges. At a hearing, the trial court, sua sponte, ordered that $500 of the $750 cash appearance bond Tundidor had posted be used to pay his attorney’s fees. This was error.

Section 27.52(3), Florida Statutes (1989), states that a judge may reverse a previous finding of indigency upon proper evidence, and the state may then proceed with an action to recover attorney’s fees. However, in this case, the judge did not reverse his finding of indigency. He simply assessed fees. Moreover, applying the factors for determining indigency, § 27.-52(2)(b), Fla, Stat. (1989), to the facts of this case shows that Tundidor remained indigent at the time of the hearing.

Accordingly, we reverse the order entered assessing attorney’s fees.