Neftali Dominguez Zenon v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

NEFTALI DOMINGUEZ ZENON, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D2022-1092

[January 10, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No. 502020CF004944AMB.

Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Neftali Dominguez Zenon appeals his conviction and life sentence. We affirm without discussion in part and reverse in part. We reverse on two issues.

First, the circuit court’s written cost order included a $200 cost of prosecution pursuant to section 938.27, Florida Statutes (2022), and $100 operating trust fund pursuant to section 938.055, Florida Statutes (2022). The State concedes that the record does not contain sufficient findings to justify the $200 in prosecution costs and also concedes that the $100 discretionary cost must be reversed. We agree and reverse the imposition of the $200 cost of prosecution and $100 discretionary operating trust fund cost. See, e.g., Bartolone v. State, 327 So. 3d 331, 335–36 (Fla. 4th DCA 2021). On remand, the circuit court is permitted to reimpose the $200 cost of prosecution if the State submits “sufficient proof of higher costs incurred. Id. at 335.

Second, the circuit court orally sentenced Zenon to mandatory life without parole on count one and time served on count two. The written judgment reflects both convictions. But only one written sentencing order exists in the record for count one. That sentencing order specifies count one is to run concurrently to count two. On remand, the circuit court shall enter a written sentencing order that conforms to the oral pronouncement. See Moreland v. State, 853 So. 2d 574, 575 (Fla. 4th DCA 2003) (remanding for the trial court to correct the sentencing order to reflect its oral pronouncement).

Affirmed in part, reversed in part, and remanded. KLINGENSMITH, C.J., FORST and KUNTZ, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.