Florida District Courts of Appeal, 1987

McBride v. State

McBride v. State
Florida District Courts of Appeal · Decided June 18, 1987 · Cobb, Cowart, Sharp
508 So. 2d 772; 12 Fla. L. Weekly 1511; 1987 Fla. App. LEXIS 8867 (Southern Reporter, Second Series)

McBride v. State

Opinion of the Court

SHARP, Judge.

McBride appeals that portion of her sentence imposing costs pursuant to section 27.3455, Florida Statutes (1985), as a condition to grant her gain-time. She was convicted of possession of cocaine and marijuana.1 We quash the imposition of costs.

McBride’s offenses were committed in April of 1985 and section 27.3455 became effective on July 1, 1985. Ex post facto application of the penalties imposed by this statute is unconstitutional. State v. Yost, 507 So.2d 1099 (Fla. 1987); Gordon v. State, 497 So.2d 661 (Fla. 5th DCA 1986); Miller v. State, 492 So.2d 1191 (Fla. 5th DCA 1986). Although McBride failed to raise this issue below, we have held it may be raised for the first time on appeal. Givens v. State, 501 So.2d 758 (Fla. 5th DCA 1987); Webber v. State, 497 So.2d 995 (Fla. 5th DCA 1986). Contra. Vogtsberger v. State, 502 So.2d 984, 985 (Fla. 1st DCA 1987); Johnson v. State, 495 So.2d 188 (Fla. 2d DCA 1986).

We therefore quash that portion of the sentence imposing costs.

*773AFFIRMED IN PART; QUASH IMPOSITION OF COSTS.

COBB, J., concurs. COWART, J., concurs specially with opinion.

. § 893.13, Fla.Stat. (1985).

Concurring Opinion

COWART, Judge,

concurring specially.

I concur in the majority opinion quashing that portion of the sentence imposing costs because of the ex post facto application of section 27.3455, Florida Statutes (1985). Even if the offenses had been committed after the effective date of the statute, I would quash that portion of the sentence imposing costs “as a condition to granting her gain-time.” Such a condition violates defendant’s equal protection guarantees and penalizes her for being indigent. See the dissent in Outar v. State, No. 86-1713 (Fla. 5th DCA June 18, 1987).

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