Givens v. State

Full title: MICHAEL GIVENS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Feb 5, 1987

501 So. 2d 758 (Fla. Dist. Ct. App. 1987)

Opinion

No. 86-1282.

February 5, 1987.

Appeal from the Circuit Court, St. Johns County, Richard G. Weinberg, J.

James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

Michael Givens appeals the imposition of costs in a sentence entered in May, 1985. Givens argues that the trial court erred in imposing costs pursuant to section 27.3455, Florida Statutes (1985). We agree.

In Yost v. State, 489 So.2d 131 (Fla. 5th DCA 1986), we held that a court cannot impose costs under section 27.3455 for crimes committed prior to July 1, 1985. We certify to the supreme court the same question we certified in Yost:

Does the application of section 27.3455, Florida Statutes (1985), to crimes committed prior to the effective date of the statute violate the ex post facto provisions of the Constitutions of the United States and the State of Florida, or does the statute merely effect a procedural change as is permitted under State v. Jackson, 478 So.2d 1054 (Fla. 1985)?

See also Fowler v. State, 498 So.2d 1014 (Fla. 5th DCA 1986); Bello v. State, 497 So.2d 1346 (Fla. 5th DCA 1986); Robinson v. State, 488 So.2d 925 (Fla. 5th DCA 1986).

The state argues that this issue as not been preserved for review due to appellant's failure to contemporaneously object. This question was answered by this court in Webber v. State, 497 So.2d 995 (Fla. 5th DCA 1986). In Webber this court held that the violation of constitutional ex post facto restrictions by imposing costs pursuant to section 27.3455 for a defendant convicted prior to the effective date of the statute, was "the type of sentencing error which may be raised on appeal notwithstanding the defendant's failure to object at sentencing because it results in an illegal sentence." Id. at 966.¹ In support of this proposition, the Webber panel cited State v. Whitfield, 487 So.2d 1045 (Fla. 1986).

1 Contra Johnson v. State, 495 So.2d 188 (Fla. 2d DCA 1986); Slaughter v. State, 493 So.2d 1109 (Fla. 1st DCA 1986).

Since the offense for which Givens was sentenced was committed in May, 1985, prior to the effective date of section 27.3455, we reverse the order imposing court costs, and certify the foregoing question.

REVERSED.

DAUKSCH, COBB and SHARP, JJ., concur.