Michael A. Dunlap v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-5177 _____________________________

MICHAEL A. DUNLAP,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Wakulla County. James O. Shelfer, Judge.

September 10, 2020

PER CURIAM.

Michael Dunlap appeals his judgment and sentence for five counts of burglary of a dwelling and five counts of grand theft. We affirm his judgment and sentence, except for the assessment of the $1,000 fine and $50 surcharge. We find that the trial court erred in imposing the fine and corresponding surcharge without orally pronouncing the fine.

At sentencing, the court orally imposed $1,715 in costs and fines but did not specify the various bases for its assessment. The written order, however, listed a fine pursuant to section 775.083, Florida Statutes (2017), in the amount of $1,000, with a five percent surcharge of $50. Under section 775.083, the $1000 fine is discretionary and may not be imposed without notice and an

opportunity to be heard. Mills v. State, 177 So. 3d 984, 988 (Fla. 1st DCA 2015) (en banc). Appellant’s counsel filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) below challenging the imposition of the fine without notice, but this motion was denied. Because the court did not follow the proper procedure in imposing the $1,000 fine and $50 surcharge, and the issue is preserved, the fine and surcharge must be stricken. See id. If the court wishes to reimpose the fine and surcharge on remand, it may do so after providing the requisite notice and opportunity to be heard. Id.

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

LEWIS, B.L. THOMAS, and NORDBY, JJ., concur.

_____________________________

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

Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.