Opinion
No. 4D21-2541
07-27-2022
Anton B. ELLIOT, Appellant, v. STATE of Florida, Appellee.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
ON CONCESSION OF ERRORS
Gerber, J. The defendant appeals from the trial court's order denying his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing errors. The defendant argues the trial court erred by imposing certain costs at sentencing—specifically, $50 for investigative costs and $200 for prosecution costs—where the state allegedly waived those costs; the defendant did not consent to those costs; and the trial court failed to inform the defendant that he could request a hearing on those costs. The state responds it did not waive the prosecution costs, but concedes the trial court erred in assessing the investigative costs, and also erred in assessing $200 for prosecution costs. We agree with the state's concession of errors.
As for the $50 investigative cost, "[t]rial courts cannot impose investigative costs where,"—as here—"the record does not demonstrate that the [s]tate requested reimbursements for these costs. If these costs are not requested by the [s]tate, they must be stricken and cannot be imposed on remand." Desrosiers v. State , 286 So. 3d 297, 300 (Fla. 4th DCA 2019) (internal citation and quotation marks omitted); see also Richards v. State , 288 So. 3d 574, 577 (Fla. 2020) ("[T]he State must request investigative costs to make a defendant liable for those costs."). Thus, we reverse the $50 investigative cost imposition, and remand for the trial court to strike the $50 investigative cost imposition.
As for the $200 prosecution cost, section 938.27(8), Florida Statutes (2021), provides: "Costs for the state attorney must be set in all cases at ... no less than $100 per case when a felony offense is charged .... The court may set a higher amount upon a showing of sufficient proof of higher costs incurred." § 938.27(8), Fla. Stat. (2021). "The burden of demonstrating the amount of costs incurred is on the state attorney." § 938.27(4), Fla. Stat. (2021).
Here, the state neither requested the trial court to impose a $200 prosecution cost, nor presented any evidence to support this higher cost. The trial court also did not announce this higher cost. To the contrary, when the trial court asked the state whether it was requesting "any additional"—i.e., non-statutorily mandated—"fees or costs ... [to] be assessed," the state responded it was "not going to ask for any [such additional] costs." Thus, we reverse the $200 prosecution cost imposition, and remand for the trial court to reduce the prosecution cost to $100. See Sikich v. State, 337 So. 3d 811, 812 (Fla. 4th DCA 2022) (reversing and remanding for the trial court to reduce prosecution cost to the statutory minimum, where the state did not request the trial court to impose, and did not present any evidence to support, the higher cost, and the trial court did not announce the higher cost).
The defendant need not be present for the ministerial corrections directed above.
Reversed and remanded with directions.
Levine and Artau, JJ., concur.