CHARLES KIMBALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Kimball appealed his convictions for aggravated battery and leaving the scene of a crash with injury, challenging both the convictions and certain costs imposed by the trial court. The court affirmed the convictions despite finding a prosecutorial error in closing argument was not sufficiently prejudicial, and partially reversed on the cost issues, upholding a $2 Criminal Justice Education Fund assessment but striking a $20 Crime Stoppers Trust Fund assessment.
The court held that the $2 Criminal Justice Education Fund assessment applies to both state statute violations and municipal or county ordinance violations, so Kimball's challenge to this assessment was rejected. However, the $20 Crime Stoppers Trust Fund surcharge may only be imposed as an additional surcharge to a fine prescribed by law, and since no fine was imposed, the trial court erred in imposing this assessment.
[1] A prosecutor's improper remark during closing argument does not require a mistrial if the error is not so prejudicial.
[2] A county or municipality is authorized to assess a $2 fee for criminal justice education expenditures for violations of state statutes occurring within its jurisdiction.
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Join FLexlaw to unlock all legal intelligence“A plain reading of section 938.15 grants a county or municipality the authority to assess the $2 for state statute violations that occur within its jurisdiction.”
Establishes the court's statutory interpretation rejecting the Attorney General's Opinion and the plain meaning of 'additional' in the statute.
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Join FLexlaw to unlock all legal intelligenceKimball was convicted of aggravated battery and leaving the scene of a crash with injury. The trial court imposed a $2 assessment for the Criminal Jus…
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FULMER, Chief Judge.
Charles Kimball appeals his convictions for aggravated battery and leaving the scene of a crash with injury and also challenges certain costs imposed by the trial court. Although we agree with Kim-ball that the prosecutor made an improper remark during the closing argument, we conclude that the error was not so prejudicial as to require a mistrial and, therefore, affirm the convictions without further discussion. On the cost issues, we affirm the $2 assessment for the Criminal Justice Education Fund but reverse for the trial court to strike the $20 assessment for the Crime Stoppers Trust Fund.
In two motions filed pursuant to Florida Rule of Criminal Procedure 3.800(b), Kim-ball challenged the $2 assessment for the Criminal Justice Education Fund, authorized by section 938.15, Florida Statutes (2004), and the $20 assessment for the Crime Stoppers Trust Fund, authorized by section 938.06.
Regarding the $2 assessment, Kimball asserts that the statute authorizes this assessment only for violations of county or municipal ordinances. Kimball’s position is supported by a Florida Attorney General’s Opinion, 2002-10, 2002 WL 120819 (2002), which concludes that a county or municipality is authorized to assess the $2 only for violations of its own ordinances. Thus, a county or municipality has no authority to assess the cost for the violation of a state statute that occurs within its jurisdiction.
We disagree with the conclusion reached by the Attorney General’s Opinion. A plain reading of section 938.15 grants a county or municipality the authority to assess the $2 for state statute violations that occur within its jurisdiction. Section 938.15 provides that “[i]n addition to the costs provided for in s. 938.01, municipalities and counties may assess an additional $2 for expenditures for criminal justice education ... for their respective officers.” (Emphasis added.) The “costs provided for” in section 938.01 are assessed against “every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance.” § 938.01(1). We construe the use of the word “additional” in section 938.15 to mean that where a municipality or county has chosen to make the $2 assessment, it shall be an additional cost in every case where the costs provided for by 938.01 have been authorized, which includes violations of state statutes.
The declared purpose of authorizing the additional $2 cost is to provide training for local law enforcement. As a practical matter, if the $2 assessment were limited to convictions for violations of municipal or county ordinances, it is doubtful that the assessment would produce enough revenue to fund “criminal justice education degree programs and training courses.” § 938.15. Accordingly, we reject Kimball’s challenge to the $2 assessment.
The trial court erred, however, in denying Kimball’s challenge to the $20 assessment for the Crime Stoppers Trust Fund. Section 938.06(1) authorizes this assessment as “an additional surcharge” to “any fine prescribed by law.” Where, as here, no fíne was imposed, no surcharge could be applied. Lang v. State, 856 So. 2d 1105 (Fla. 1st DCA 2003).1 The trial court must strike this cost.
Affirmed in part, reversed in part, and remanded with directions.
WHATLEY and STRINGER, JJ., Concur. . In its brief, the State recites that a fine was imposed. The record belies this assertion.
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Dadds v. State, 946 So. 2d 1129 (Fla. 2d DCA 2006)…this cost as “an additional surcharge” to “any fine prescribed by law.” Because the $500 fine discussed above was not properly imposed, the trial court could not impose the additional $20 surcharge under section 938.06. See, e.g., Kimball v. State, 933 So. 2d 1285, 1287 (Fla. 2d DCA 2006); Lang v. State, 856 So. 2d 1105, 1106 (Fla. 1st DCA 2003). This cost must be stricken. Kimball, 933 So. 2d at 1287. Finally, Mr. Dadds argues that the trial court failed to pronounce the statutory basis for the imposition…
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Cutts v. State, 940 So. 2d 1246 (Fla. 2d DCA 2006)…. 1st DCA 2005), in support of his contention. As Mr. Cutts acknowledges, however, this court has held that Blakely is not to be retroactively applied on collateral review to convictions that became final before Blakely was decided. Hughes v. State, 933 So. 2d 1285 (Fla. 2d DCA 2006); Burrows v. State, 890 So. 2d 286, 287 (Fla. 2d DCA 2004), review denied, 914 So. 2d 952 (Fla.2005). In so holding, we have aligned ourselves with the Third, Fourth, and Fifth District Courts of Appeal. See Langford v. State, 929…
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Cutwright v. State, 934 So. 2d 667 (Fla. 2d DCA 2006)…for purposes of imposing the cost in this case. This court has also held that the cost can be imposed pursuant to section 938.15 for violations of a state statute as well as for violations of a county or municipal ordinance. See Kimball v. State, 933 So. 2d 1285 (Fla. 2d DCA 2006). Consequently, we reject Cutwright’s challenge on that basis and affirm the imposition of this cost. [*669] Affirmed in part; reversed in part; remanded with instructions. FULMER, C.J., and DAVIS, J., Concur.…
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- Lang v. State, 856 So. 2d 1105 (Fla. 1st DCA 2003)