                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

CHARLES HOWARD,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-2423

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 10, 2017.

An appeal from the Circuit Court for Suwannee County.
William F. Williams, Judge.

Andy Thomas, Public Defender, and Susannah C. Loumiet, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.



WOLF, J.

      Appellant was convicted by a jury of selling, manufacturing, or delivering

cocaine, a controlled substance, within 1,000 feet of a physical place of worship.

He challenges various aspects of his judgment and sentence, but we find only two

of the issues he raised have merit, both regarding discretionary fees and costs

imposed upon him. While we affirm the judgment and sentence in all other
respects, we reverse and remand for the trial court to strike the assessment of a

$500 “jury fee” and the $150 discretionary portion of the public defender fee,

although the court may reimpose the discretionary portion of the public defender

fee if it follows the proper statutory procedure.

                                I. The $500 “Jury Fee”

      The trial court indicated during the sentencing hearing that it believed it had

the right to impose a fee upon appellant for exercising his right to a jury trial:

             . . . I do not believe it appropriate to sanction somebody
             for electing their constitutional right. I do, as is well-
             known, reserve the prerogative to impose a jury cost to
             cases that go to trial, and that may be viewed by some as
             a sanction for going to trial. It’s not. But I do believe
             that’s an appropriate cost to assess in a jury trial where
             there’s a finding against the defendant. But my
             determination as to what a proper sentence will be has
             nothing to do with the fact he went to trial.

The court then imposed a $500 “jury fee,” believing that such a fee in a criminal

case was not a sanction against appellant for electing his constitutional right to go

to trial. We disagree.

      In the analogous case Herman v. State, 161 So. 3d 452, 453-54 (Fla. 5th

DCA 2014), the Fifth District found that a $1,000 “jury fee” was unconstitutional,

reasoning that “a trial court may not impose a fine simply because the defendant

exercised his or her right to a trial,” and that “‘[a]ny judicially imposed penalty

which needlessly . . . deters the exercise of the Sixth Amendment right to demand a

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jury trial is patently unconstitutional.’” Id. (quoting Wilson v. State, 845 So. 2d

142, 150 (Fla. 2003)).

      In addition to agreeing that a “jury fee” unconstitutionally sanctions a

defendant’s right to a jury trial in criminal cases, we note that there is no statutory

authority for such a “jury fee” in criminal cases. See Williams v. State, 596 So. 2d

758, 758-59 (Fla. 2d DCA 1992). As such, we hold that the $500 “jury fee”

imposed upon appellant was improper and strike that assessment against him.

                         II. The $250 Public Defender Fee

      Appellant also challenges the $250 public defender fee imposed against him,

which was in addition to the $50 public defender application fee. Appellant alleges

the trial court failed to advise him of his right to challenge the fee, which exceeded

the minimum fee required by statute. We agree.

      Pursuant to section 938.29(1)(a), Florida Statutes (2014), attorney’s fees and

costs for a convicted defendant who received the assistance of the public

defender’s office should be “no less than $100 per case when a felony offense is

charged.” However, “[t]he court may set a higher amount upon a showing of

sufficient proof of higher fees or costs incurred” if, after the court determines the

value of the public defender’s services, the defendant receives “adequate notice

thereof” and is afforded the “opportunity to be heard and offer objection to the

determination, and to be represented by counsel.” § 938.29(5), Fla. Stat.

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      Here, the State concedes that although the trial court properly announced the

value of the fee – $250 – the trial court failed to inform appellant that he had the

right to be heard regarding the $150 discretionary portion of the fee.

      We agree, and, therefore, reverse the imposition of the discretionary portion

of the public defender fee. The court may reimpose the discretionary portion of the

fee but only after following the appropriate procedure. We affirm the judgment and

sentence in all other respects.

ROBERTS, C.J., and B.L. THOMAS, J., CONCUR.




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