Kenyanna Racquel Cheeks v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-2994 _____________________________

KENYANNA RACQUEL CHEEKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Mark Borello, Judge.

April 9, 2019

PER CURIAM.

Kenyanna Racquel Cheeks seeks relief from her judgment and sentence for sale of cocaine and solicitation for prostitution. Ms. Cheeks argues that the evidence was insufficient to overcome her defense of entrapment, the trial court erroneously overruled an objection to the admission of a jail call, and the trial court improperly imposed a discretionary fine pursuant to section 775.083, Florida Statutes, and a surcharge pursuant to section 938.04, Florida Statutes. We reject the first two arguments without comment. However, we agree with the State’s concession that the trial court erred when it included the discretionary fine and surcharge in the written judgment and sentence because neither was orally imposed at sentencing. Lamoreaux v. State, 88 So. 3d 379, 381 (Fla. 1st DCA 2012). Accordingly, we strike the

$5,000 fine and $250 surcharge and remand for entry of a corrected judgment and sentence consistent with this opinion. Id.; see also Calhoun v. State, 259 So. 3d 288, 290 (Fla. 1st DCA 2018).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

RAY, KELSEY, and JAY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.