AARON MARSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aaron Marsh appealed the trial court's denial of his motion to dismiss and challenged the imposition of certain costs. The appellate court affirmed the denial of the motion to dismiss but reversed the imposition of two costs that were either retroactively applied or imposed without the required discretionary inquiry.
The court reversed the imposition of the $65 cost under section 939.185(1) because that statute was not effective until July 1, 2004, after the crime was committed. The court also reversed the $50 cost under section 775.083(2) because the trial court failed to conduct the required hearing and make findings regarding the defendant's ability to pay, as mandated by the version of the statute in effect at the time of the crime.
[1] A statute imposing a cost or fine is only applicable to crimes committed after its effective date.
[2] A discretionary cost imposed under a statute requires the trial court to find the defendant has the ability to pay and that payment will not prevent rehabilitation or res…
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Join FLexlaw to unlock all legal intelligence“Section 939.185 became effective on July 1, 2004, ch.2004-265, § 88, at 1022-23, Laws of Fla., and is effective as to crimes committed after that date”
Establishes that the statute cannot be applied retroactively to crimes committed before its effective date
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Join FLexlaw to unlock all legal intelligenceAaron Marsh was convicted of a crime committed on July 23, 2003. The trial court imposed a $65 cost pursuant to F.S. 939.185(1) and a $50 cost pursuan…
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PER CURIAM.
Aaron Marsh appeals the trial court’s denial of his motion to dismiss, asserts that the trial court erroneously imposed certain costs, and claims that the trial court failed to give him proper credit for time served. We reverse the trial court’s order solely as to the imposition of certain costs and affirm in all other respects.1
Marsh challenges the trial court’s order imposing a $65 cost “pursuant to F.S. 939.185(1).” Section 939.185 became effective on July 1, 2004, ch.2004-265, § 88, at 1022-23, Laws of Fla., and is effective as to crimes committed after that date, Navicky v. State, 949 So. 2d 1047, 1048 (Fla. 2d DCA 2006). Marsh’s crime was committed on July 23, 2003, before the statute came into existence. Therefore, the cost was erroneously imposed.
Marsh also challenges the trial court’s order imposing a $50 cost “pursuant to F.S. 775.083(2).” Although the imposed cost was mandatory under the 2004 version of section 772.083(2), the version of this statute in effect at the time of the commission of the crime was discretionary and required that the trial court find that the defendant had the ability to pay. § 775.083(2)(b), Fla. Stat. (2003) (“[T]he court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution:”). Because the trial court imposed this discretionary cost without conducting the required inquiry, the cost must be stricken. See Gonzalez v. State, 939 So. 2d 224, 225 (Fla. 2d DGA 2006); Stewart v. State, 916 So. 2d 53, 54 (Fla. 2d DCA 2005).
Accordingly, we strike the $65 court cost imposed pursuant to section 939.185(1) and the $50 cost imposed pursuant to section 775.083(2)(b) and remand to the circuit court to correct the judgment. On remand, the trial court may reimpose the $50 cost pursuant to section 775.083(2)(b) if it conducts the necessary hearing and makes the required findings. •
Affirmed in part, costs stricken as noted, and remanded.
WHATLEY and CASANUEVA, JJ., and FOSTER, ROBERT A., Associate Judge, Concur. . Marsh preserved the cost and fine issues for appeal by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gonzalez v. State, 939 So. 2d 224 (Fla. 2d DCA 2006)
- Stewart v. State, 916 So. 2d 53 (Fla. 2d DCA 2005)
- Navicky v. State, 949 So. 2d 1047 (Fla. 2d DCA 2006)