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

GERALD WAYNE SIMMONS,                NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-4411

STATE OF FLORIDA,

     Appellee.
_____________________________/

Opinion filed August 16, 2016.

An appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Samuel Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      We affirm without comment Appellant’s conviction and sentence for

burglary of a dwelling with a dangerous weapon and dealing in stolen property by

trafficking. We accept the State’s proper concession that the trial court erred in

imposing a discretionary fine, surcharge, and imposition of a $300 public defender
lien. For the reasons that follow, we strike the specific fine, surcharge, and public

defender lien/fee, and we remand for further proceedings.

      The written judgment reflected a discretionary fee of $342.86 pursuant to

section 775.083, Florida Statutes, and a $17.14 surcharge pursuant to section

938.04, Florida Statutes. At sentencing, however, the trial court only pronounced:

“775 court costs, a hundred-dollar Local Governmental Trust, a hundred-dollar

cost of prosecution, and a $300 P.D. fee will be reduced to a judgment.” We find

that this same oral pronouncement was made in another case where we reversed

and remanded this same discretionary fine, surcharge, and public defender lien.

See Odom v. State, 187 So. 3d 324, 325 (Fla. 1st DCA 2016). In Odom, we

concluded that the oral pronouncement was insufficient to notify the appellant of

the discretionary fine and surcharge pursuant to section 775.083, but noted that, on

remand, the court may reimpose the discretionary fine and surcharge after giving

notice and following the proper procedure. Id. at 325. We also held that the trial

court erred in failing to provide the appellant the opportunity to contest imposition

of the public defender lien and application fee in excess of the minimum statutory

amount, and held:

      Pursuant to sections 938.29(1)(a) and 27.52, the Legislature has
      required the imposition of a minimum fee of $100 for the assistance of
      the public defender's office and a $50 application fee. A notice and
      hearing are not required before imposition of this minimum lien
      amount. Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015) (en
      banc). However, because the trial court did not impose the minimum
                                         2
      here, it was required to give Appellant notice and an opportunity to be
      heard before imposition. Therefore, we remand to the trial court to
      reduce the public defender lien to the minimum amount or to hold a
      hearing with proper notice to Appellant. See Maestas v. State, 76
      So.3d 991, 993 (Fla. 4th DCA 2011) (holding that $400 public
      defender lien was erroneously imposed and remanding for imposition
      of minimum lien amount or a hearing with proper notice).

Id. at 325-26. We find that our recent opinion in Odom controls this issue, and we

reverse and remand for further proceedings, consistent with Odom.

      AFFIRMED in part, REVERSED in part, and REMANDED.

B.L. THOMAS, WINOKUR, and JAY, JJ., CONCUR.




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