CORDELL ASHFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appeal, the Fifth District Court of Appeal affirmed in part and reversed in part Ashford's sentencing, striking an unauthorized probation assessment and a public defender fee imposed without proper notice of his right to contest it. The court also noted sentencing issues related to concurrent versus consecutive sentences that were contrary to plea agreements but found it lacked jurisdiction to review them absent a motion to withdraw the plea.
The $60 probation assessment to First Step of Volusia County, Inc. is unauthorized and stricken. The $100 public defender fee is stricken without prejudice to reimposition upon compliance with procedural requirements. The court lacks jurisdiction to review the concurrent versus consecutive sentencing issue absent a motion to withdraw the plea, but the trial court may reconsider sentencing in light of the plea agreement upon remand.
[1] A special condition of probation imposing an unauthorized assessment is invalid and must be stricken.
[2] A public defender fee must be stricken if the trial court fails to inform the defendant of their right to contest the amount of the fee.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the special condition of probation imposing on Appellant Cordell Ashford a $60.00 assessment to be paid to First Step of Volusia County, Inc., is unauthorized and stricken”
Establishes that the probation assessment violated prior case law and must be removed from the sentence.
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Join FLexlaw to unlock all legal intelligenceAshford entered negotiated pleas to two separate felony offenses: possession with intent to sell a controlled substance and battery on a law enforceme…
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HARRIS, Chief Judge.
In this Anders appeal,1 two minor sentencing errors appear in the record. The special condition of probation imposing on Appellant Cordell Ashford a $60.00 assessment to be paid to First Step of Volusia County, Inc., is unauthorized and stricken. Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994) (en banc).
Additionally, the trial court assessed a $100 public defender fee. While this fee is statutorily allowable, the trial court did not inform Ashford of his right to contest the amount of the public defender fee as required by rule 3.720(d)(1). Under Bull v. State, 548 So. 2d 1103 (Fla.1989), therefore, the $100 fee must be stricken, without prejudice to its reimposition upon compliance with rule 3.720(d)(1). See also McLeod v. State, 645 So. 2d 116 (Fla. 5th DCA 1994), Edwards v. State, 639 So. 2d 107 (Fla. 5th DCA 1994), review denied, 645 So. 2d 451 (Fla.1994); Fontenot v. State, 631 So. 2d 379 (Fla. 5th DCA 1994); Fannin v. State, 630 So. 2d 230 (Fla. 5th DCA 1994).
We further note that in this case Ash-ford entered negotiated pleas to two separate felony offenses.2 In both the written pleas, the prosecutor agreed that Ashford’s sentences for both counts would run concurrently. Both the written pleas also stated the prosecutor would agree that if Ashford scored in the 1st, 2d, or 3d cell he would receive no further incarceration. While the record does not contain a scoresheet, Ash-ford was sentenced as if he fell within the 1st cell. No mention was made in the sentencing documents or at the plea colloquy of the plea agreements. Nor was mention made as to whether the sentences would be concurrent or consecutive. Since the two offenses were charged in separate informations, and since the judgments and sentences are silent, the presumption is that Ashford’s sentences are consecutive. § 921.16(1), Fla.Stat. (1993).
Although the sentences were not as agreed, they are still legal sentences, and Ashford has not moved to withdraw his plea.
Therefore, we are without jurisdiction to review them. See Duhart v. State, 548 So. 2d 302 (Fla. 5th DCA 1989); see also Kravitz v. State, 638 So. 2d 636 (Fla. 5th DCA 1994). Since this case has to be remanded for further action, however, the trial court may wish to reconsider Ashford’s sentencing in light of the agreement between Ashford and the State.
Affirmed in part; reversed and remanded in part for further proceedings consistent with this opinion.
W. SHARP and THOMPSON, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. These were possession with intent to sell a controlled substance, § 893.13(1), Fla.Stat. (1993), and battery on a law enforcement officer, § 784.07(2), Fla.Stat. (1993).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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M.D. v. State, 686 So. 2d 769 (Fla. 5th DCA 1997)…vor of the public defender, we strike the lien without prejudice. Andrews v. State, 660 So. 2d 394 (Fla. 5th DCA 1995). Accord Houser v. State, 666 So. 2d 158 (Fla. 5th DCA 1995); Glenn v. State, 657 So. 2d 970 (Fla. 5th DCA 1995); Ashford v. State, 652 So. 2d 1195 (Fla. 5th DCA 1995); Burke v. State, 642 So. 2d 677 [*770] (Fla. 5th DCA 1994). See also Bull v. State, 548 So. 2d 1103 (Fla.1989). JUDGMENT AND DISPOSITION AFFIRMED; LIEN-STRICKEN. PETERSON, C.J., and HARRIS and ANTOON, JJ., concur.…
Authorities Cited (11 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994)
- Goshay v. State, 646 So. 2d 213 (Fla. 1st DCA 1994)
- Duhart v. State, 548 So. 2d 302 (Fla. 5th DCA 1989)
- Crawford v. State, 631 So. 2d 379 (Fla. 5th DCA 1994)
- Lambert v. State, 630 So. 2d 230 (Fla. 2d DCA 1994)
- McLEOD v. State, 645 So. 2d 116 (Fla. 5th DCA 1994)
- Edwards v. State, 639 So. 2d 107 (Fla. 5th DCA 1994)
- McCLOUD v. State, 638 So. 2d 636 (Fla. 2d DCA 1994)