Opinion
No. 1D20-2564
12-01-2021
Ann Marie STANCIL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
Per Curiam.
In this Anders appeal, we affirm Appellant's judgment and sentence. Finding merit in the State's cross-appeal, we reverse the "Order Granting Defendant's Motion to Correct Sentencing Error with Directions to the Clerk of Court."
In 2018, pursuant to a negotiated plea agreement, the trial court adjudicated Appellant guilty of grand theft, placed her on probation for thirty-six months, and imposed court costs, fees, and fines of $668.00. The costs, fees, and fines included the required minimum assessments for prosecution costs of $100—as authorized by section 938.27, Florida Statutes —a public defender application fee of $50—as authorized by section 27.52, Florida Statutes —and legal assistance fees of $100—as authorized by section 938.29, Florida Statutes. In 2020, following an admission to violating probation, the trial court revoked Appellant's probation, imposed a jail sentence, and imposed the required minimum assessments for prosecution costs of $100, a public defender application fee of $50, and legal assistance fees of $100.
During her appeal, Appellant filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). Appellant argued that prosecution costs, public defender application fees, and legal assistance fees were improperly assessed a second time. Although the trial court found the authorizing statutes were unambiguous and required the imposition of prosecution costs, public defender application fees, and legal assistance fees in both the initial judgment and sentence—as well as the judgment and sentence entered after violation of probation—it concluded that the Fifth District's decision in Chivese v. State, 295 So. 3d 324 (Fla. 5th DCA 2020), prohibited the imposition of a second state attorney fee, public defender application fee, and public defender services fee. Based on this authority, the trial court granted Appellant's motion and struck the second assessment for $100 in prosecution costs, the $50 public defender application fee, and $100 in legal assistance fees. On cross-appeal, the State argues that Chivese conflicts with the plain language of the authorizing statutes and that the failure to impose mandatory costs and fees pursuant to those statutes resulted in an illegal sentence appealable by the State pursuant to section 924.07(1)(e), Florida Statutes. We agree that the failure to impose statutorily mandated costs and fees constituted an illegal sentence. See State v. Hayes , 317 So. 3d 285, 286 (Fla. 2d DCA 2021) (reversing sentence with directions to "impose a cost of prosecution of no less than $100 as required by section 938.27(8)").
In 2008, the Florida Legislature amended the statutes in question for the express purpose of "providing for the payment of [prosecution] costs in violation-of-probation or community-control cases" and "providing for the payment of attorney's fees and costs in violation-of-probation or community-control cases." Ch. 2008-111, Laws of Fla. (title language). Specifically, section 938.27, Florida Statutes, was amended to provide in pertinent part:
(1) In all criminal and violation-of-probation or community-control cases , convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. The court shall include these costs in every judgment rendered against the convicted person. For purposes of this section, "convicted" means a determination of guilt, or of violation of probation or community control , which is a result of a plea, trial, or violation proceeding , regardless of whether adjudication is withheld.
....
(8) Costs for the state attorney shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control . The court may set a higher amount upon a showing of sufficient proof of higher costs incurred....
(Emphasis added). See Ch. 2008-111, § 44, Laws of Fla. Similarly, section 938.29, Florida Statutes, was amended to provide in pertinent part:
(1)(a) A defendant who is convicted of a criminal act or a violation of probation or community control and who has received the assistance of the public defender's office, a special assistant public defender, the office of criminal conflict and civil regional counsel, or a private conflict attorney, or who has received due process services after being found indigent for costs under s. 27.52, shall be liable for payment of the assessed application fee under s. 27.52 and attorney's fees and costs. Attorney's fees and costs shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control . The court may set a higher amount upon a showing of sufficient proof of higher fees or costs incurred. For purposes of this section, "convicted" means a determination of guilt, or of violation of probation or community control , which is a result of a plea, trial, or violation proceeding , regardless of whether adjudication is withheld. The
court shall include these fees and costs in every judgment rendered against the convicted person
(Emphasis added). See Ch. 2008-111, § 45, Laws of Fla.
We conclude that the plain language of the foregoing statutory provisions requires the assessment of the minimum amounts for prosecution costs and legal assistance fees in each violation proceeding resulting in a determination of violation of probation or community control. Accordingly, the trial court was required to assess prosecution costs of $100 pursuant to section 938.27 and legal assistance fees of $100 pursuant to section 938.29 for Appellant's violation of probation. These costs would be in addition to the $100 in prosecution costs and the $100 in legal assistance fees imposed when Appellant was first adjudicated guilty and placed on probation.
We disagree with the State's assertion that the Fifth District held to the contrary in Chivese . The trial court in Chivese entered two separate cost judgments: the first when probation was originally ordered and the second when probation was revoked. A problem arose when the cost judgment from the violation of probation also included the amount from the original cost judgment. Because the two cost judgments were cumulative, the Fifth District held that the inclusion of the amount from the original cost judgment in the subsequent cost judgment was duplicative. 295 So. 3d at 326. Our holding here does not conflict with Chivese insofar as there was no duplicative assessment of costs in this case.
Finally, because the public defender was reappointed to represent Appellant at the probation violation hearing, we hold that the trial court was required to impose an additional $50 public defender application fee pursuant to section 27.52(1)(b), Florida Statutes, which expressly provides that "[a]n applicant shall pay a $50 application fee to the clerk for each application for court-appointed counsel filed." (Emphasis added).
Accordingly, we reverse the "Order Granting Defendant's Motion to Correct Sentencing Error with Directions to the Clerk of Court." On remand, the trial court should reimpose the statutory minimum amounts for prosecution costs, public defender application fees, and legal assistance fees. Appellant need not be present for the reimposition of these costs and fees.
Makar, Jay, and Tanenbaum, JJ., concur.