McElrath v. State

Full title: RICHARD McELRATH, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Jun 8, 1994

638 So. 2d 155 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-01551.

June 8, 1994.

Appeal from the Circuit Court, Collier County, Ted H. Brousseau, J.

James Leray LeGrande of LeGrande LeGrande, Fort Myers, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Christopher M. Sierra, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Acting Chief Judge.

Richard McElrath challenges the trial court's order imposing costs of prosecution under section 939.01(5), Florida Statutes (1993).

The record reflects that after the state presented witnesses that offered proof of the amount of the costs of prosecution, the trial judge heard the parties' arguments and entered the order without considering the defendant's financial resources. "[T]he state has the burden of proving the amount of these costs, and the trial court must consider the defendant's financial resources before imposing them." Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994); Tennie v. State, 593 So.2d 1199 (Fla. 2d DCA 1992).

Because this procedure was not followed in this case, we strike the order imposing costs. On remand, the state may seek to reimpose these costs. See Sutton.

PATTERSON and LAZZARA, JJ., concur.