State of Florida v. J.A.R., etc.

Supreme Court of Florida
____________

No. SC20-1604
____________

STATE OF FLORIDA,
Petitioner,

vs.

J.A.R.,
Respondent.

June 3, 2021

GROSSHANS, J.

We have for review the Second District Court of Appeal’s

decision in J.A.R. v. State, 45 Fla. L. Weekly D2361 (Fla. 2d DCA

Oct. 16, 2020), which held, in pertinent part, that the trial court

erred in failing to notify J.A.R. of his asserted right to a hearing to

challenge the $100 public defender fee imposed at sentencing.

Recognizing two contrary holdings, the Second District certified

direct conflict with Mills v. State, 177 So. 3d 984 (Fla. 1st DCA

2015), and Alexis v. State, 211 So. 3d 81 (Fla. 4th DCA 2017). We

have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons
explained below, we quash J.A.R. on this issue and approve the

holdings reached in Mills and Alexis to the extent they are

consistent with this opinion.

BACKGROUND

The State charged J.A.R., a child, with two felonies and a

misdemeanor, and the trial court appointed an assistant public

defender to represent him in the case. J.A.R., 45 Fla. L. Weekly at

D2361-62. Following an evidentiary hearing, the trial court

adjudicated J.A.R. delinquent for committing the charged acts. Id.

at D2362. In addition, the trial court imposed a $100 public

defender fee under section 938.29, Florida Statutes (2019), see id.,

the minimum amount required by the statute in cases involving

felony charges. § 938.29(1)(a). The trial court did not apprise

J.A.R. of the fee or inform him of the right to a hearing to contest

the fee. J.A.R., 45 Fla. L. Weekly at D2362.

J.A.R. appealed, challenging, among other things, the

imposition of the fee. Id. at 2361-62. In addressing this issue, the

Second District discussed its decision in Newton v. State, 262 So.

3d 849 (Fla. 2d DCA 2018), which “held that the trial court [in that

case] erred in imposing a $100 fee for the services of court-

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appointed conflict counsel where the court failed to notify the

[defendant at sentencing] of his right to a hearing to contest the

fee.” J.A.R., 45 Fla. L. Weekly at D2362 (citing Newton, 262 So. 3d

at 849-50 (Fla. 2d DCA 2018). Applying Newton, the Second

District struck the public defender fee since the trial court “did not

give J.A.R. notice of his right to a hearing to contest th[e] fee.” Id.

The Second District then certified conflict with the contrary

decisions of the First District Court of Appeal in Mills and the

Fourth District Court of Appeal in Alexis—each holding that where

the trial court imposes the minimum fee required under section

938.29(1)(a), the court need not notify the defendant of the right to

a hearing to contest the fee. See Mills, 177 So. 3d at 987 (holding

that because the $100 public defender fee is “binding on the court

and the defendant alike, no hearing is necessary or appropriate”);

Alexis, 211 So. 3d at 82 (holding that “notice and a hearing are not

required before imposition of the minimum [public defender fee]”

because the minimum amount is “statutorily mandated”).

The State now seeks review of J.A.R, urging that we follow

Mills and Alexis. We hold that, by its plain language, section

938.29(1)(a) does not afford a defendant the right to contest the

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amount of the public defender fee when, as here, the trial court

imposes the minimum amount required by the statute. Under

these circumstances, the trial court is not required to announce the

imposition of the fee at sentencing or notify the defendant of the

right to a hearing to contest the fee.

ANALYSIS

This case presents a question of statutory interpretation,

which we review de novo. Hill v. Davis, 70 So. 3d 572, 575 (Fla.

2011). A court’s determination of the meaning of a statute begins

with the language of the statute. Lopez v. Hall, 233 So. 3d 451, 453

(Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).

“[W]hen the language of a statute to be construed is unambiguous,

it must be accorded its plain and ordinary meaning.” Brown v.

State, 715 So. 2d 241, 243 (Fla. 1998).

Accordingly, we begin our analysis by focusing on the text of

section 938.29(1)(a), Florida Statutes, which provides:

A defendant who is convicted of a criminal act
or a violation of probation or community
control and who has received the assistance of
the public defender’s office . . . shall be liable
for payment of . . . attorney’s fees and costs.
Attorney’s fees and costs shall be set in all
cases at no less than $50 per case when a

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misdemeanor or criminal traffic offense is
charged and no less than $100 per case when
a felony offense is charged . . . . The court may
set a higher amount upon a showing of
sufficient proof of higher fees or costs
incurred. . . . The court shall include these fees
and costs in every judgment rendered against
the convicted person.

Id. (emphasis added).

There is no doubt that section 938.29(1)(a) requires the trial

court to impose fees on any defendant who is convicted of a

criminal act and represented by a public defender. As to the

amount of the fee, the statute mandates that the trial court must

impose, at minimum, a $100 fee following a conviction for any

criminal act when “a felony offense is charged.” Id. That amount

constitutes the statutory minimum for the representation of the

public defender and is not discretionary; nor is that amount

dependent on the quality or character of the representation. In

contrast, if the court exercises its discretion under the statute to

impose a fee amount higher than the statutory minimum, there

must be “sufficient proof of higher fees or costs incurred.”

§ 938.29(1)(a).

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Notably, section 938.29(1)(a) does not require the trial court to

announce the imposition of the statutorily required fee; nor does it

afford the defendant any substantive right to contest the fee. And,

no other portion of section 938.29 requires notice and a hearing

when the court imposes the minimum fee required under

subsection (1)(a). Though subsection (5) includes a notice-and-

hearing requirement, that requirement only applies when the court

determines the value of the services of the public defender. See

§ 938.29(5). When the court imposes the statutory minimum, the

court is not tasked with making such a determination. See id.

Accordingly, subsection (5) does not apply here, and we decline to

read its notice-and-hearing requirement into the remainder of the

statute. See Brown, 715 So. 2d at 243.

Perhaps recognizing that section 938.29 does not support his

argument, J.A.R. calls our attention to a rule of criminal procedure,

which provides:

As soon as practicable after the determination
of guilt and after the examination of any
presentence reports, the sentencing court shall
order a sentencing hearing. At the hearing:
....
(d)(1) If the accused was represented by a
public defender or other court appointed

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counsel, the court shall notify the accused of
the imposition of a lien pursuant to section
938.29, Florida Statutes. The amount of the
lien shall be given and a judgment entered in
that amount against the accused. Notice of
the accused’s right to a hearing to contest the
amount of the lien shall be given at the time of
sentence.

Fla. R. Crim. P. 3.720(d)(1).

As seen above, this rule does contain a notice-and-hearing

requirement. However, even assuming this rule would apply here,

the rule cannot conflict with the substantive law embodied in

section 938.29. See Beynard v. Wainwright, 322 So. 2d 473, 476

(Fla. 1975) (noting that a statute controls over an inconsistent rule

of procedure); see also Kuhajda v. Borden Dairy Co. of Ala., 202 So.

3d 391, 395-96 (Fla. 2016). Because the rule might well be

inconsistent with the statute and our holding today, we refer this

matter to the Criminal Procedure Rules Committee for

consideration.

To summarize, section 938.29(1)(a) requires the imposition of

a minimum $100 public defender fee on all defendants represented

by the public defender when the individual is charged with a felony

and convicted of a criminal act. When imposing the statutory

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minimum, the trial court need not announce the imposition of the

public defender’s fee or inform the defendant of a right to contest

the fee. If, however, the trial court determines that the value of the

public defender’s service warrants a higher fee, it must notify the

defendant of the fee as well as the right to contest it. Rule 3.720(d)

cannot alter these substantive statutory principles.

Now, we apply these principles to the facts here. J.A.R. was

charged with committing multiple felonies, convicted of a criminal

act, and was represented by an assistant public defender. Based

on that representation, the trial court imposed a public defender fee

of $100. Since that amount is the statutory minimum under

section 938.29(1)(a), the trial court was not required to provide

notice and hearing as to that fee.

CONCLUSION

In conclusion, we approve the holdings in Mills and Alexis to

the extent they are consistent with this opinion. In contrast, and

pursuant to our analysis above, we disapprove the Second District’s

decision to strike the public defender’s fee. Accordingly, we remand

for the Second District to reinstate the $100 public defender fee.

It is so ordered.

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CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
– Certified Direct Conflict of Decisions

Second District - Case No. 2D18-4975

(Hillsborough County)

Ashley Moody, Attorney General, Tallahassee, Florida, C. Suzanne
Bechard, Bureau Chief, and Elba Caridad Martin, Assistant
Attorney General, Tampa, Florida,

for Petitioner

Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner,
Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Respondent

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