Opinion
Case No. 5D19-942
04-17-2020
Robert HAAR, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
We affirm Robert Haar's conviction of sexual battery on a victim 12 years of age or older (multiple perpetrators) with specified circumstances of threat or coercion. However, as will be explained herein, the $100 indigent defense cost initially imposed was inadvertently not struck by a subsequently entered costs judgment.
§§ 794.011(4)(b), 794.023, Fla. Stat. (1997). The victim was 14 years old at the time of the offense.
Following his sentencing hearing, the trial court ordered Haar to pay a $100 indigent defense cost, a $100 cost of prosecution, and a $50 indigency application fee pursuant to sections 938.29, 938.27, and 27.52(2)(a), Florida Statutes (2019), respectively. Haar filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, alleging that the trial court erred in ordering that he pay the indigent defense cost and cost of prosecution because neither cost comported with the trial court's oral pronouncement at the sentencing hearing. Additionally, Haar contended that the applicable version of the indigent defense cost statute was the version in effect at the time he committed the crime, under which the trial court was not bound to impose a minimum cost. See § 938.29, Fla. Stat. (1997).
Pursuant to the 2019 version of the statute, a trial court was required to assess costs not less than $100 for any defendant convicted of a felony. § 938.29, Fla. Stat. (2019).
The trial court granted Haar's motion on the basis that neither the indigent defense cost nor the cost of prosecution comported with its oral pronouncement. However, in its order, the trial court directed that the Clerk of Court strike the $50 indigency application fee imposed pursuant to section 27.52(2)(a) and the $100 cost of prosecution "imposed pursuant to section 938.29"—the indigent defense cost statute. Following the entry of that order, the Clerk of Court struck only the $100 cost of prosecution, and the trial court entered an amended final judgment for charges, costs, and fees.
We note that contrary to Haar's position, the applicable version of the indigent defense cost statute was the version in effect at the time of sentencing. See § 938.29, Fla. Stat. (2019) ; Griffin v. State, 980 So. 2d 1035 (Fla. 2008) (holding that statute authorizing assessment of costs following felony conviction applied retroactively to defendant who committed felony prior to enactment of statute; retroactive application did not violate ex post facto prohibitions because statute did not increase length of defendant's sentence or alter definition of criminal conduct). Pursuant to the 2019 version of section 938.29, the trial court was not required to orally pronounce the $100 indigent defense cost prior to imposing it because the cost was mandatory. See Strong v. State, 140 So. 3d 680, 681 (Fla. 5th DCA 2014) ("[S]tatutorily-mandated costs may be imposed without notice (and thus, need not be individually announced at sentencing) ...." (quoting Boyington v. State, 125 So. 3d 327, 327–28 (Fla. 1st DCA 2013) )). However, the State did not cross-appeal this issue.
We find the trial court's directions to the Clerk of Court to be a scrivener's error, in that they should have reflected the trial court's ruling to strike the $100 indigent defense cost imposed pursuant to section 938.29 and the $100 cost of prosecution imposed pursuant to section 938.27. Accordingly, we affirm and remand for the trial court to enter an order correcting the scrivener's error. Following the entry of that order, the Clerk of the Court in and for Volusia County should strike the $100 indigent defense cost, and the trial court should enter a second-amended final judgment for charges, costs, and fees.
The dissent's assertion that the trial court did not strike the $100 indigent defense cost is belied by the order. Haar filed a motion seeking to strike that cost as well as others. The trial court entered an order granting that request, ruling:
Defendant also alleges that, because this Court failed to orally pronounce costs for the Public Defender and prosecution,
they must be stricken. Because these costs do not comport with this Court's oral pronouncement, they must be stricken. See Chrystie v. State, 95 So. 3d 1027, 1028 (Fla. 5th DCA 2012) (citing Williams v. State, 957 So. 2d 600, 603 (Fla. 2007) ). This request to strike costs is granted .
(Emphasis added). How such orders are effectuated is helpful in understanding why there was a disconnect. Following the entry of such an order, the clerk of the court is tasked with the preparation of an amended order taxing costs. As explained, the clerk of the court failed to comply with that order because the trial court's directions to the clerk confused the cost statutes’ names and numbers. Thus, contrary to the assertion by the dissent, the trial court's intention, as well as its error, are apparent from the face of the order, even without a transcript.
The position taken by the dissent would effectively reverse the trial court's order striking the indigent defense cost when neither party has requested that relief. To the contrary, the State stipulated to the striking of the cost below, did not challenge that ruling on appeal, and filed a brief in which it conceded error, albeit misguided. The trial court's ruling striking the assessment is not an error of a fundamental nature which would require this Court to sua sponte reverse. Such action would be beyond the role of this Court.
AFFIRMED; REMANDED WITH INSTRUCTIONS.
HARRIS, J., concurs in result only.
EISNAUGLE, J., concurs in part and dissents in part, with opinion.
EISNAUGLE, J., concurring in part, dissenting in part.
I agree that Haar's judgment and sentence must be affirmed. However, I would not remand the amended costs judgment for correction of a scrivener's error because to do so would result in substantive error.
The concurring opinion seems to conclude that the trial court intended to strike the $100 indigent defense cost, but failed to do so, and remands with instructions that the trial court strike that cost.
Given that there is no majority opinion in this case, I will refer to Judge Cohen's opinion as a concurring opinion consistent with the practice employed by our supreme court in Byrd v. State, 880 So. 2d 616, 617 (Fla. 2004).
Assuming, arguendo, that the trial court intended to strike the $100 indigent defense cost, the concurrence concedes that the intent was in error. See § 938.29(1)(a), Fla. Stat. (2019) ; 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." (citation omitted)).
Importantly, regardless of the trial court's intent, the rule 3.800 order itself was not in error because it did not instruct the clerk to strike the cost. As a result, it is no surprise that the amended costs judgment, as prepared by the clerk and signed by the trial judge, did not strike the cost either.
The trial court's rule 3.800(b) order, as it relates to costs, reads in pertinent part:
Defendant also alleges that, because this Court failed to orally pronounce costs for the Public Defender and prosecution, they must be stricken. Because these costs do not comport with this Court's oral pronouncement, they must be stricken. See Chrystie v. State, 95 So. 3d 1027, 1028 (Fla. 5th DCA 2012) (citing Williams v. State, 957 So. 2d 600, 603 (Fla. 2007) ). This request to strike costs is granted.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. Defendant's motion to correct sentencing error is DENIED to the extent that he requests resentencing;
2. Defendant's motion to correct sentencing error is GRANTED to the extent that he requests this Court to STRIKE the Public Defender and prosecution costs;
3. The Office of the Clerk of the Court is DIRECTED to AMEND the "Order/Final Judgment for Charges, Costs, & Fees" filed on March 29, 2019, to STRIKE the $50.00 "Indigency Application Fee/Public Defender" cost imposed pursuant to section 27.52(2)(a), Florida Statutes (1997), and the $100.00 "State Attorney Cost of Prosecution (No less than $100.00)" imposed pursuant to section 938.29, Florida Statutes (1997), under the "Additional Mandatory Costs" section.
In short, if the trial court intended to err, it failed to accomplish the error, and reached the correct result in spite of its errant intent. I would not require correction of a scrivener's error when doing so would result in substantive error.
The concurring opinion observes that the State has conceded error and did not cross-appeal. However, we are not bound by the State's improper concession of error, see Powell v. State, 223 So. 3d 412, 413 n.1 (Fla. 5th DCA 2017) ("A confession of error ... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state." (citations omitted)), and the State was without grounds to cross-appeal because the trial judge did not strike the indigent defense cost. State v. Perez, 979 So. 2d 986, 988 (Fla. 3d DCA 2008) ("It is axiomatic that no party has standing to object to a ruling which does not adversely affect its substantial rights." (citation omitted)).
In sum, I would affirm because, regardless of intent, the trial court did not err.