Newton v. State, 262 So. 3d 849 (2018)

Dec. 28, 2018 · District Court of Appeal of Florida, Second District · Case No. 2D16-3559
262 So. 3d 849

Willie Mathers NEWTON, DOC #268531, Appellant,
v.
STATE of Florida, Appellee.

Case No. 2D16-3559

District Court of Appeal of Florida, Second District.

Opinion filed December 28, 2018

Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

Willie Mathers Newton appeals a judgment and sentence entered after a jury found him guilty of second-degree murder while discharging a firearm causing death. We disagree with Newton's argument that the trial court erred in denying his motion for judgment of acquittal and affirm the judgment and sentence without further comment.

Newton also appeals the judgment for costs and fines that, in pertinent part, imposes a $100 fee for the services of court-appointed conflict counsel. See § 938.29(1), Fla. Stat. (2016). We agree with Newton's argument that the trial court erred in denying his motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b)(2) because contrary to our precedent and to the plain language of rule 3.720(d)(1), read together *850with section 938.29(5), the court had failed to give Newton notice of his right to a hearing to contest the $100 fee when pronouncing its imposition at sentencing. See Gedehomme v. State, 160 So.3d 533, 534 (Fla. 2d DCA 2015) (holding that the trial court erred in failing to give Gedehomme an opportunity to request a hearing regarding the $100 cost for his public defender pursuant to section 938.29, Florida Statutes (2012), and instructing that "[t]he court may reimpose the $100 public defender fee but only after proper notice and the opportunity for Gedehomme to be heard on that issue"); Neal v. State, 62 So.3d 1277, 1277-78 (Fla. 2d DCA 2011) (holding that the trial court erred in failing to "give Neal notice of his right to a hearing to contest the amount of the $100 public defender's lien that was imposed as part of his sentence" under rule 3.720(d)(1) and remanding for the trial court "to strike the lien and afford Neal the opportunity to properly object to the amount imposed").1

Instead, the trial court determined that such notice was not required when imposing the statutory minimum of $100, relying on the First District's decision in Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015) (en banc) ("[W]e recede from any and all decisions holding that sections 938.29(1) and 27.52, Florida Statutes, as amended effective July 1, 2008, require notice and hearing before imposition of a minimum public defender's lien, i.e., $150 in felony cases or $100 in misdemeanor cases."). Because we have already held to the contrary, however, the trial court was not at liberty to do so. See also Pardo v. State, 596 So.2d 665, 666-67 (Fla. 1992) ("The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it." (quoting State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976) ) ).2 Accordingly, we reverse the $100 fee, remand for further proceedings, and certify conflict with the First District's decision in Mills.

Affirmed in part; reversed in part; remanded; conflict certified.

CASANUEVA and CRENSHAW, JJ., Concur.