DAN MADISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Madison appealed cost assessments of $50 for the drug abuse fund and $100 for the Florida Department of Law Enforcement (FDLE) imposed after his conviction. The Fifth District Court of Appeal reversed these assessments, holding that they must be orally pronounced at sentencing, have clear statutory authorization stated in the written judgment, and provide defendants notice and opportunity to be heard before discretionary costs can be imposed.
The court held that both cost assessments must be reversed. Cost assessments require: (1) oral pronouncement at sentencing; (2) clear statutory authority identified in the written judgment; and (3) for discretionary costs, prior notice and an opportunity for the defendant to be heard. The FDLE cost could not be sustained under section 939.01 because the state neither requested nor documented the investigative costs as required by that statute.
[1] Cost assessments imposed in a written sentence or order of probation must identify the statutory authority for such costs.
[2] A cost assessment for investigative costs incurred by law enforcement agencies requires a request and documentation from the agency.
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Join FLexlaw to unlock all legal intelligence“They were not orally pronounced at the sentencing hearing and there is no statutory reference for these costs on either the sentence or order of probation, authorizing such assessment.”
States the threshold requirements for valid cost assessments—oral pronouncement and statutory reference in the judgment.
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Join FLexlaw to unlock all legal intelligenceMadison was convicted of a drug offense. The trial court imposed cost assessments of $50 to a drug abuse fund and $100 to the FDLE without orally pron…
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W. SHARP, Judge.
We agree with Madison that the cost assessments of $50.00 for the drug abuse fund and $100.00 for Florida Department of Law Enforcement (FDLE) must be reversed. They were not orally pronounced at the sentencing hearing and there is no statutory reference for these costs on either the sentence or order of probation, authorizing such assessment. The state argues that section 893.13(8)(a) authorizes the drug abuse cost assessment, and that section 939.01(1) authorizes the cost assessment for FDLE. That alone is not sufficient.
Initially we note that this court has followed the practice of requiring that the trial judge identify the statutory authority for costs imposed in the written sentence or order of probation. See Brooks v. State, 649 So. 2d 329 (Fla. 5th DCA 1995); Samuels v. State, 649 So. 2d 272 (Fla. 5th DCA 1994), cause dismissed, 657 So. 2d 1163 (Fla.1995); Valdez v. State, 639 So. 2d 1135 (Fla. 5th DCA 1994). In a case where the statutory basis is not clear or easily ascertainable, the appellate court is left to guess at the authority under which a cost is assessed.
With regard to the FDLE cost assessment in this case, section 939.01(1) provides that in all criminal cases, the costs of prosecution, including investigative costs incurred by law enforcement agencies, if requested and documented by such agencies, shall be included and entered in the judgment rendered against the convicted person.
Section 893.13(8)(b) provides that a court can assess any defendant convicted of a violation of that section the amount of $100.00 for the trust fund of the Department of Law Enforcement, to be used by the statewide criminal analysis laboratory system. It is not clear from the order or the record below whether the $100.00 cost is for the criminal analysis laboratory system, or is an investigative cost. This underscores the need for a clear declaration as to what purpose a cost is being assessed. See Flowers v. State, 659 So. 2d 448 (Fla. 2d DCA 1995) ($100.00 laboratory fee for FDLE stricken because it was imposed without any statutory basis for its imposition); Samuels (although this court surmised that the costs to FDLE referred to costs of prosecution, cost award was stricken since its purpose was not ascertainable from the record).
Assuming that the $100.00 refers to investigative costs pursuant to section 939.01, there is no request in the record by the state and there is no documentation proffered to support the request on that basis. The statute requires both for an award under section 939.01. Thus, the cost assessment could not be sustained on this ground. See Brown v. State, 657 So. 2d 1280 (Fla. 5th DCA 1995) (assessment of $250.00 investigative costs stricken when state failed to request or document the cost as required by section 939.01); Daniels v. State, 656 So. 2d 251 (Fla. 1st DCA 1995) (cost award to FDLE stricken where there was no documentation for the cost).
Further we note that cost awards for the drug abuse program authorized by section 893.13(8)(a) and for the FDLE trust fund (for the criminal analysis laboratory system) pursuant to section 893.13(8)(b) are discretionary with the court.
Thus, such costs cannot be imposed without giving a defendant the opportunity to challenge them at a hearing, prior to their imposition. See Williams v. State, 604 So. 2d 13 (Fla. 2d DCA 1992) (cost to county drug abuse fund was not a statutorily mandated cost, and thus had to be stricken for lack of notice or opportunity to be heard); Williams v. State, 601 So. 2d 1277 (Fla. 2d DCA 1992) (discretionary costs assessed for the court improvement fund, cost of prosecution, the drug abuse fund and the crime lab funds stricken because the defendant was not given notice and opportunity to be heard.)
AFFIRMED in part; Cost Awards for Drug Abuse Fund and Florida Department of Law Enforcement STRICKEN.
PETERSON, C.J., and THOMPSON, J., concur.
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Fisher v. State, 697 So. 2d 1291 (Fla. 1st DCA 1997)…sher notice and an opportunity to contest them. However, any fee originally imposed pursuant to section 939.01(1), Florida Statutes, may not be reimposed on remand, as the record contains no request by the state for such a fee. See Madison v. State, 664 So. 2d 1140, 1141 (Fla. 5th DCA 1995). Finally, the trial court must also identify the statutory authority for the public defender fee (section 27.56, Florida Statutes) and allow the defendant notice and an opportunity to contest the amount of the fee before it…
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Mitchell v. State, 678 So. 2d 1362 (Fla. 1st DCA 1996)…te may seek reimposition of appropriate costs in accordance with the procedures set forth in Reyes, 655 So. 2d at 111, and in Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995). Rivers v. State, 677 So. 2d 53 (Fla. 1st DCA 1996); Madison v. State, 664 So. 2d 1140 (Fla. 5th DCA 1995). In summary, Mitchell’s convictions are AFFIRMED. We REVERSE the habitual felony offender adjudications in Counts III and V and REMAND for resentencing. We AFFIRM the sentences for Counts I and IV, including the condition that C…
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Jackson v. State, 685 So. 2d 1386 (Fla. 5th DCA 1997)…which was to be imposed on appellant in the event he obtained administrative probationary status after completing one-half of his probation. This cost must be stricken because there appears to be no statutory authorization for it. Madison v. State, 664 So. 2d 1140 (Fla. 5th DCA 1995). Finally, the appellant properly brings to this court’s attention an additional discrepancy between the conditions announced orally in court and the written order of probation. At the sentencing hearing the trial court orally pro…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Williams v. State, 601 So. 2d 1277 (Fla. 2d DCA 1992)
- Samuels v. State, 649 So. 2d 272 (Fla. 5th DCA 1994)
- Brooks v. State, 649 So. 2d 329 (Fla. 5th DCA 1995)
- Daniels v. State, 656 So. 2d 251 (Fla. 1st DCA 1995)
- Brown v. State, 657 So. 2d 1280 (Fla. 5th DCA 1995)
- Specialty Ins. Underwriters Inc. v. Boyd, 604 So. 2d 13 (Fla. 4th DCA 1992)
- Williams v. State, 604 So. 2d 13 (Fla. 2d DCA 1992)
- Abelardo Valdez v. State, 639 So. 2d 1135 (Fla. 5th DCA 1994)
- Whitaker v. State, 639 So. 2d 1135 (Fla. 5th DCA 1994)
- Flowers v. State, 659 So. 2d 448 (Fla. 2d DCA 1995)