Ferber v. State

[1064] ORDER GRIMES, Chief Judge. Appellant timely filed a petition for review of an order denying his motion to tax costs incurred in his criminal appeal. The motion was properly filed under Rule 3.16(c), Florida Appellate Rules, 1962 Revision, since the original appeal was taken before March 1, 1978. Therefore, we deny appellee’s motion to dismiss. On the merits it appears that by virtue of an appeal taken by the appellant, this court reversed the judgments of guilt and sentences entered below. Ferber v. State, 353 So.2d 1256 (Fla.2d DCA 1978). Therefore, pursuant to the provisions of Section 939.15, Florida Statutes (1977), which specifically authorize the recovery of costs where there is a reversal of a judgment, we hold that the trial court erred in denying appellant the right to recover any costs incurred incident to his appeal. The fact that appellant may have later pled to a lesser charge is irrelevant. However, we note that appellant is only entitled to recover those appellate costs which are legally taxable. See Doran v. State, 296 So.2d 86 (Fla.2d DCA 1974). We reverse the order denying the taxing of appellate costs and remand the cause with directions to award appellant such appellate costs as are properly taxable. SCHEB and DANAHY, JJ., concur.