Stephen Trusty v. State of Florida , 210 So. 3d 758 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STEPHEN TRUSTY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1233
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed February 14, 2017.
An appeal from the Circuit Court for Bay County.
Elijah Smiley, Judge.
Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Stephen Trusty appeals his convictions and sentences for second-degree
murder and witness tampering, raising five grounds for reversal. We affirm on all
grounds with the exception of the assessment of certain costs and fines. We find
that the trial court erred in imposing these costs and fines, and therefore accept the
State’s proper concession of error.*
At sentencing, the court stated that it would “impose a five thousand dollar
cost on [the] case,” but did not specify the various bases for its assessment. The
written order, however, listed several individual costs with statutory citations, as
well as a fine in the amount of $3,878.85, with a five percent surcharge of $204.15,
for a total assessment of $5,000. Many of the individual costs imposed were
mandatory, and the court was not required to separately identify those assessments
at the sentencing hearing. Lang v. State, 856 So. 2d 1105, 1107 (Fla. 1st DCA 2003)
(citing Reyes v. State, 655 So. 2d 111, 116 (Fla. 2d DCA 1995)).
However, a fine pursuant to section 775.083, Florida Statutes (2014), is
discretionary, and may not be imposed without notice and an opportunity to be
*
The State also conceded error with regard to Trusty’s claim that the criminal
punishment scoresheet incorrectly classified his tampering with a witness conviction
as a level nine offense, arguing that it should have been classified as a level four
offense. This concession was incorrect because witness tampering is a level four
offense only when the relevant investigation or proceeding is a third-degree felony.
See § 914.22, Fla. Stat. (2014) (classifying witness tampering offenses based on the
affected investigation or proceeding); § 21.0022, Fla. Stat. (2014) (providing that
the statutory references and offense degree designations in the offense severity
ranking chart are controlling, and ranking the third-degree felony of tampering with
a witness as a level four offense). Here, because Trusty’s tampering conviction
relates to a proceeding or investigation for a higher degree offense—second-degree
murder—it is classified in accordance with section 921.0023, Florida Statutes. See
§§914.22, 921.0022, 921.0023, Fla. Stat. (2014).
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heard. Mills v. State, 177 So. 3d 984, 988 (Fla. 1st DCA 2015). Because the court
did not follow the proper procedure in imposing the $3,878.85 fine, it must be
stricken. See id. Further, where such a fine is imposed without proper notice, its
corresponding surcharge must also be stricken. Id. If the court wishes to reimpose
the fine and surcharge on remand, it may do so after providing the requisite notice
and opportunity to be heard. Id.
Similarly, Trusty challenges a $300.00 appointed attorney lien payment
assessment. While section 938.29, Florida Statutes, mandates a legal assistance lien
assessment of “no less than $100 per case when a felony offense is charged,” and
authorizes a higher amount “upon a showing of sufficient proof of higher fees or
costs incurred,” a trial court is required to give the defendant notice and an
opportunity to be heard prior to imposing a fee in excess of the statutory
minimum. Carmichael v. State, 192 So. 3d 640 (Fla. 1st DCA 2016). Here, because
Trusty was not given notice and an opportunity to be heard regarding the
discretionary portion of the assessment, it must be stricken. On remand, the court
may reimpose this cost after complying with the proper procedure. Id.
Next, Trusty challenges the imposition of a $2.00 cost for the Gulf Coast
College Community Justice Assessment Center. Section 318.18, Florida Statutes,
authorizes an assessment of two dollars for offenses involving motor vehicles, but is
not applicable to Trusty’s convictions. Thus, this assessment was unauthorized and
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must be stricken. See, e.g., Renaud v. State, 660 So. 2d 408, 408 (Fla. 1st DCA
1995) (remanding with directions to strike unauthorized cost).
Finally, Trusty challenges a $50.00 fine imposed for the Drug Abuse Trust
Fund. While section 938.298 authorizes such a fine in cases involving certain
alcohol or drug offenses, and section 893.165 provides for those fines to go toward
Drug Abuse Trust Funds established at the county level, Trusty was not convicted
of one of these offenses. Thus, this assessment was unauthorized and must be
stricken. See Renaud, id.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED with
directions.
B.L. THOMAS, ROWE, and WINSOR, JJ., CONCUR.
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