We affirm the judgment of conviction but address the sentence as to costs because we must remand. However, with respect to the sentence we certify a question as being of great public importance.
Appellant objects to the imposition of costs as part of his sentence since he was adjudicated insolvent and cites to Mays v. State, 519 So.2d 618 (Fla. 1988), and Jenkins v. State, 444 So.2d 947 (Fla. 1984). At the sentencing hearing there was no determination of appellant's ability to pay. The public defender asked the trial court to waive the trust fund. However, the court said: "If he's going to be able to pay the fine, he'll be able to pay the Trust Fund. We'll wait and see what happens."
Under the present law, we must remand for a determination of ability to pay pursuant to Mays and Jenkins. The state does not concede this point, but presents a new argument that we should reconsider and reevaluate this issue in light of recent federal decisions, then certify a question to the supreme court for resolution.
In United States v. Cooper, 870 F.2d 586 (11th Cir. 1989), the Eleventh Circuit agreed with the First and Second Circuits in rejecting a defendant's contention that assessment of costs against him was unconstitutional because he was indigent. The court believed that the imposition of costs was different from the collection of costs and that the question of ability to pay was premature until attempt was made to collect the costs imposed. See also United States v. Rivera-Velez, 839 F.2d 8 (1st Cir. 1988); United States v. Pagan, 785 F.2d 378 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S. Ct. 667, 93 L. Ed. 2d 719 (1986). As the court stated in Pagan,
Thus, the imposition of assessments on an indigent, per se, does not offend the Constitution. Constitutional principles will be implicated here only if the government seeks to force collection of the assessments . . . when [Pagan is] unable, through no fault of his own, to comply.
785 F.2d at 381.
The state argues that the law in Florida should be consistent with the federal standard, and that Mays and Jenkins should be reassessed. According to the state, the local federal court of appeals is treating the identical cost statute differently despite the identical constitutional claims asserted. Mays, as argued by the state, is no longer applicable to sentences imposed since 1987 because the Legislature amended the cost statute (section 27.3455, Florida Statutes). The state also points out the consistency between the federal standard and the Jenkins decision:
The state must, however, provide adequate notice of such assessment to the defendant with full opportunity to object to the assessment of those costs. In addition, any enforcement of the collection of those costs must occur only after a judicial finding that the indigent defendant has the ability to pay . . . .
Jenkins, 444 So.2d at 950.
The state acknowledges that this court is bound by precedent but requests that we certify a question to the supreme court so it may consider the argument that the federal standard should be applied in Florida. We agree with appellee and certify the following question:
WHETHER THE IMPOSITION OF COSTS AGAINST AN INDIGENT DEFENDANT IS DIFFERENT THAN THE COLLECTION OF THOSE COSTS MAKING THE QUESTION OF ABILITY TO PAY PREMATURE UNTIL ATTEMPT IS MADE TO COLLECT SUCH COSTS?