DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LADARIUS BROOKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-2980

[June 1, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562013CF 

003308A.

Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, 

Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine 

Germanowicz, Assistant Attorney General, West Palm Beach, for 

appellee.

KLINGENSMITH, J.

Ladarius Brooks appeals his sentence rendered after he entered into a 

negotiated plea agreement. He makes two claims of error: first, that the 

trial court erred by imposing public defender fees without providing him 

with the required notice; and second, that the trial court erred by 

adjudicating him guilty and sentencing him for a charge on which he did 

not enter a plea. We agree on both issues and reverse.

Brooks was charged with one count of burglary of a structure (“Count 

I”) and one count of second degree petit theft (“Count II”). The written 

plea agreement in this case clearly reflects that Brooks pleaded no 

contest only as to Count I, and did not enter a plea on Count II. The plea 

agreement also stated:

I am not waiving my right to appeal any sentence in violation 

of the Sentencing Guidelines, or criminal punishment code, 

unless specifically contained within the plea agreement.
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. . . .

I understand that both mandatory and discretionary fees 

and costs may be imposed by the court at the time of 

sentencing. My attorney and I can object at sentencing to 

any fees and costs. I understand that if I fail to object at the 

time of sentencing, I will be waiving the ability to appeal the 

imposition of the fees and costs.

At the sentencing hearing the trial judge briefly discussed the charges 

and fees that Brooks would be responsible for, which included court 

costs, cost of prosecution, cost of investigation, public defender fees, and 

restitution. Notably, the trial court did not provide an amount for the 

public defender fees, and Brooks’ attorney did not object.

The final order rendered by the trial court reflects that Brooks was 

sentenced for both Count I and Count II, although he entered a plea only 

as to Count I. Additionally, the trial court rendered two subsequent 

orders imposing fines, fees, costs, and additional charges that directed 

Brooks to pay fees of $1,011.00 and $1,450.00 to the public defender, for 

a total of $2,461.00.

Brooks subsequently filed a motion to correct illegal sentence 

pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that 

the public defender fees should be struck and the conviction for Count II 

should be vacated. He claimed that the trial court failed to provide him 

with the required notice of, and opportunity to object to, the public 

defender fees, in violation of section 938.29(5), Florida Statutes (2014). 

He also asserted that the trial court committed fundamental error by 

sentencing him on a charge to which he did not enter a plea.

According to the record on appeal, this motion was never ruled upon 

and is therefore deemed denied due to the trial court’s failure to rule 

upon it within sixty (60) days. Fla. R. Crim. P. 3.800(b)(2)(B); see also 

Dabel v. State, 79 So. 3d 873, 874 (Fla. 4th DCA 2012) (stating the 

same). “Because a motion to correct a sentencing error involves a pure 

issue of law, our standard of review is de novo.” Smith v. State, 143 So. 

3d 1023, 1024 (Fla. 4th DCA 2014) (quoting Salter v. State, 77 So. 3d 

760, 764 (Fla. 4th DCA 2011)).
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Section 938.29(5) states:

The court having jurisdiction of the defendant-recipient 

shall, at such stage of the proceedings as the court may 

deem appropriate, determine the value of the services of the 

public defender, special assistant public defender, office of 

criminal conflict and civil regional counsel, or appointed 

private legal counsel and costs, at which time the defendantrecipient or parent, after adequate notice thereof, shall have 

opportunity to be heard and offer objection to the 

determination, and to be represented by counsel, with due 

opportunity to exercise and be accorded the procedures and 

rights provided in the laws and court rules pertaining to civil 

cases at law.

§ 938.29(5), Fla. Stat. (2014) (emphasis added).

Additionally:

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 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) (emphasis added).

Florida courts have repeatedly held that a defendant must be notified 

of the amount of the public defender fee(s) to be imposed at the 

sentencing hearing, and of his or her right to contest the fees. See Dabel, 

79 So. 3d at 874-75 (reversing imposition of public defender fee because 

defendant “was not provided notice of the trial court’s intent to impose 

the public defender attorney’s fees or of his right to contest the fees at a 

hearing” in violation of section 938.29(5) and rule 3.720(d)); see also 

Migliore v. State, 953 So. 2d 754, 754 (Fla. 2d DCA 2007) (reversing in 
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part because “[a]t the sentencing hearing, the trial court . . . told [the 

defendant] that court costs and attorney’s fees would be through the 

court’s financial recovery procedure but failed to state the amount of the 

fee or to advise [the defendant] of his right to a hearing to contest that 

amount, as required by section 938.29(5), Florida Statutes (2004) and 

Florida Rule of Criminal Procedure 3.720(d)(1)”); Finkelstein v. State, 944 

So. 2d 1226, 1227 (Fla. 4th DCA 2006) (noting that the defendant was 

deprived of an opportunity to “be heard and object to the imposition of 

public defender fees,” and reversing and remanding in part with 

instructions for trial court to provide defendant with “notice of his right 

to a hearing on the matter and to schedule a hearing if one is 

requested”); Brown v. State, 682 So. 2d 667, 669 (Fla. 4th DCA 1996) 

(reversing in part due to trial court’s failure to notify defendant of his 

right to contest the amount charged at the time of sentence as required 

by rule 3.720(d)(1)).

The State argues that Brooks was on notice that any right to appeal 

the charges would be waived if he failed to object at the hearing, as 

stated in the plea agreement. However, the State fails to take into 

account the fact that Brooks was never notified of his right to contest the 

charges during the sentencing hearing, as required. Despite the 

statutory requirements, the record shows that the trial court merely 

stated at the sentencing hearing that certain costs, including public 

defender fees, would be imposed. The court did not state the amount of 

those fees at the hearing, and did not notify Brooks of his right to contest 

the charges. 

Additionally, the record does not include any documents pre-dating 

the sentencing hearing that served to inform Brooks of the amount of 

any public defender or collateral counsel fees he would be required to 

pay. While the written plea agreement contains a provision notifying him 

that he may be responsible for certain fees, including public defender 

fees, the form does not include an amount. His first notification of the 

amount of these fees came from the orders entered by the trial court after 

the sentencing hearing.

On the second issue, the State concedes error. The record reflects 

that the trial court sentenced Brooks on Count II when he entered a plea 

only as to Count I. It is fundamental error to sentence a defendant on all 

counts charged when he or she has not entered a plea as to each offense. 

See, e.g., Brown v. State, 960 So. 2d 905, 905 (Fla. 2d DCA 2007) (“The 

judgment includes an adjudication for an offense to which [the 

defendant] did not plead. This was fundamental reversible error . . . .”). 
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Therefore, the trial court erred by sentencing Brooks on Count II as well 

as Count I.

For the reasons stated above, we reverse Brooks’ conviction for Count 

II and remand for re-sentencing on Count I. Because Brooks was on 

notice that public defender fees would be imposed, but was not informed 

of the specific amounts or of his right to contest them, at the new 

sentencing hearing the trial court shall inform Brooks of the amount of 

the public defender fees to be imposed, and of his right to a hearing. 

Migliore, 953 So. 3d at 754.

Reversed and Remanded.

CIKLIN, C.J., and WARNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.