Averitt McKenzie v. State of Florida

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

AVERITT MCKENZIE, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Petitioner, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-0152

STATE OF FLORIDA,

Respondent. ___________________________/

Opinion filed May 8, 2015.

Petition Alleging Ineffective Assistance of Appellate Counsel -- Original Jurisdiction.

Averitt McKenzie, pro se, Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

Averitt McKenzie presents a timely claim that he was denied the effective assistance of counsel on direct appeal. Among his claims, we find merit only in his assertion that appellate counsel was ineffective for failure to challenge the assessment of a $100 “sheriff’s office investigative cost” where that cost was not requested, documented, subjected to argument concerning the amount, or orally pronounced. See, *2 e.g., Pruitt v. State, 98 So. 3d 231 (Fla. 1st DCA 2012), receded from on other grounds by Spear v. State, 109 So. 3d 232 (Fla. 1st DCA 2013) (en banc). On this basis, we grant the petition, and concluding that a new appeal concerning this limited issue is unnecessary, we remand with directions to strike this assessment.

PETITION GRANTED; REMANDED WITH DIRECTIONS. LEWIS, C.J., WETHERELL and RAY, JJ., CONCUR.