Opinion
Case No. 5D19-3107
04-17-2020
Brian CHIVESE, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Danielle R. Rufai, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Danielle R. Rufai, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
In this Anders appeal, Brian Chivese challenges the judgment and sentence imposed following the trial court's revocation of his probation after a violation of probation ("VOP") trial. Chivese also appeals the separate judgment and sentence entered by the court following his nolo contendere plea in a second case immediately after being sentenced for the VOP. Having reviewed the record, we affirm the judgment and sentence entered in each case, with the following two exceptions.
Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
First, the trial court erred in assessing investigative costs in each case under section 938.27(1), Florida Statutes (2018), in the absence of a request from the State. See Richards v. State , 288 So. 3d 574, 575–76 (Fla. 2020). On remand, the trial court shall enter amended judgments that do not include these investigative costs. The State may not thereafter seek imposition of these costs. Id. at 577.
Second, the trial court entered a cost judgment in Chivese's VOP case in which it assessed a $200 charge for the cost of prosecution under section 938.27(8), Florida Statutes (2018), and a separate $200 charge for "Indigency Defense Cost" under section 938.29(1)(a), Florida Statutes (2018). Chivese's appellate counsel timely challenged these costs in a motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b)(2), which the trial court denied.
Circuit Court Case No. 18-001928-CF-MA.
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Chivese acknowledges that, in his VOP proceeding, the court was required to assess a minimum $100 charge for cost of prosecution under section 938.27(8), see Hills v. State , 90 So. 3d 927, 928 (Fla. 1st DCA 2012) (recognizing that the cost of prosecution statute created "mandatory minimum costs" to be assessed in favor of the state attorney's office and removed the trial court's discretion to impose these costs), together with the statutorily-mandated $100 indigency defense cost under section 938.29, see Alexis v. State , 211 So. 3d 81, 82 (Fla. 4th DCA 2017) ("Because [ section 938.29 ] fees are statutorily mandated, notice and a hearing are not required before imposition of the minimum amount."). Chivese's objection was to the court assessing the additional $100 for both the prosecution costs and the indigent defense cost because there was no proof presented that established that the cost of prosecution or the indigent defense cost for the VOP exceeded $100. See § 938.27(8), Fla. Stat. (2019) ("The court may set a higher amount [above $100 when a felony offense is charged] upon a showing of sufficient proof of higher costs incurred."); accord § 938.29(1)(a), Fla. Stat. (2019).
In denying the motion, the court related that when Chivese was first placed on probation, the cost judgment entered at that time included the minimum mandatory $100 cost of prosecution and $100 indigency defense cost charges. It then explained that the respective $200 assessments for the cost of prosecution and the indigency defense cost in the VOP cost judgment reflected these initial $100 assessments, plus a new $100 cost of prosecution charge and a new $100 indigency defense cost for the VOP case.
We conclude that the $200 cost of prosecution and $200 indigency defense cost assessments in the cost judgment entered in the VOP case must be stricken because they are, in fact, duplicative of charges imposed in the initial cost judgment entered in the case, which remains outstanding. Cf. Hamiter v. State , 290 So.3d 1003 (Fla. 2d DCA 2020) (reversing and remanding for the trial court to enter an amended judgment that strikes a statutorily-mandated fine plus surcharge imposed by the court following the revocation of the defendant's probation for being duplicative of the fine and surcharge contained in the judgment entered when the defendant was first placed on probation). On remand, the trial court shall either enter an amended cost judgment in Case No.: 18-001928-CF-MA that shows the assessment of the mandatory minimum costs of $100 for the cost of prosecution under section 938.27 and $100 for the indigency defense cost under section 938.29 for the VOP, or hold an evidentiary hearing with proper notice that provides Chivese with an opportunity to be heard if the court intends to impose in excess of the minimum $100 for cost of prosecution and $100 for indigency defense cost for the VOP proceeding. See Harmon v. State , 160 So. 3d 939, 940 (Fla. 5th DCA 2015) ; Desrosiers v. State , 286 So. 3d 297, 300 (Fla. 4th DCA 2019).
AFFIRMED; REMANDED with directions.
ORFINGER and EDWARDS, JJ., concur.