District Court of Appeal of Florida, Second District.
James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
WHATLEY, Judge.
Travis Cross appeals his conviction and sentence for attempted sale of cocaine. We affirm his conviction and sentence without discussion. However, Cross argues, and we agree, that the trial court erred in imposing a $500 discretionary fine and a five percent surcharge.[1]
During the sentencing hearing, the trial court announced that Cross would be responsible for paying a $500 cost. However, the written order varies from the oral pronouncement and reflects the imposition of a $500 fine. Therefore, the $500 fine is stricken and this issue is remanded to the trial court for the purpose of conforming the written order to the oral pronouncement and for clarification regarding the nature of the assessment and the statutory authority underlying it. See Hill v. State, 664 So. 2d 327 (Fla. 1st DCA 1995); Johnson v. State, 664 So. 2d 1105 (Fla. 1st DCA 1995).
*2 Further, the trial court announced that Cross would have to pay a five percent surcharge under section 316.193, Florida Statutes (2003). The assessment of this surcharge was improper, because section 316.193 prescribes the penalties for driving under the influence, a crime not charged in the information. Therefore, the five percent surcharge pursuant to section 316.193 is stricken.
Conviction and sentence affirmed; $500 fine and five percent surcharge stricken; and remanded for clarification of the $500 cost.
SILBERMAN and KELLY, JJ., Concur.
[1] Cross preserved this issue by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
