section 938.27 costs of prosecution in Florida

2024But as this Court has recently explained, “the [$100] cost for the state attorney is a minimum cost that is mandated by subsection (8) and not an ‘investigative’ cost incurred by an agency, as described in § 938.27(1), which can only be imposed ‘if requested’ by the agency.” Parks v. State, 371 So. 3d 392 , 392–93 (Fla. 1st DCA 2023), review granted, SC2023-1355, 2024 WL 370043 (Fla. Jan. 31, 2024).

2024In Hills v. State, 90 So. 3d 927, 928 (Fla. 1st DCA 2012), the First District noted that “the mandatory provisions of section 938.27(8) and the other amendments restricting the trial judge’s discretion have negated any reason to require the state attorney to request the minimum costs [of prosecution] for the state attorney . . . . [thus], the trial court did not commit error by imposing the $100 statutory minimum costs under section 938.27(8), Florida Statutes (2010) without a request from the state on the record . . . .” See also Parks v. State, 371 So. 3d 392 , 393–94 (Fla. 1st DCA 2023); Wa

2025The trial court recognized subsection (1) of section 938.27 but looked to the “[n]otabl[e]” 2008 amendment to “subsection (8) that mandates costs of -6- prosecution . . . of $100.00 in felony cases.” The trial court concluded that its decision was “controll[ed]” not by the First District’s order in Brown but by the First District’s decision in Hills v. State, 90 So. 3d 927 (Fla. 1st DCA 2012), which held that “[t]he 2008 amendments to section 938.27(8) created mandatory minimum costs for the state attorney and removed the trial court’s discretion to impose these costs.” Id. at 928 .

2025The trial court recognized subsection (1) of section 938.27 but looked to the “[n]otabl[e]” 2008 amendment to “subsection (8) that mandates costs of -6- prosecution . . . of $100.00 in felony cases.” The trial court concluded that its decision was “controll[ed]” not by the First District’s order in Brown but by the First District’s decision in Hills v. State, 90 So. 3d 927 (Fla. 1st DCA 2012), which held that “[t]he 2008 amendments to section 938.27(8) created mandatory minimum costs for the state attorney and removed the trial court’s discretion to impose these costs.” Id. at 928 .

2026See Kee v. State, 385 So. 3d 139 , 139-40 (Fla. 4th DCA 2024) ("When the trial court fails to make the appropriate factual findings regarding prosecution costs above the statutory minimum or orally announce a higher amount at sentencing, prosecution costs will be reduced to the mandatory minimum amount." (citing Desrosiers v. State, 286 So. 3d 297 , 300 (Fla. 4th DCA 2019))). 2 Accordingly, we affirm Mr. Gilbreth's judgment and sentences in all respects but reverse the denial of his rule 3.800(b)(2) motion and remand with instructions for the trial court to strike one of the duplicative $50 co

2021Finkelstein, 944 So. 2d at 1227 . 2 2 The State argues that Desrosiers held that, on remand, “a trial court could reimpose discretionary fees above the mandatory amounts assessed for prosecution costs and court costs . . . .” In our pre-Richards opinion in Desrosiers, under the heading “Court Costs,” we discussed both section 938.27(8) prosecution costs and section 938.05(1) court costs and stated “[o]n remand, courts may reimpose discretionary costs if they are supported by the requisite factual findings. 286 So. 3d at 300.

2015See D.A. v. State, 11 So. 3d 423, 424 (Fla. 4th DCA 2009) (holding that it was error to impose the cost of prosecution pursuant to section 938.27, Florida Statutes (2007), which applies to "convicted persons" in "criminal cases," because a juvenile who has been adjudicated delinquent has not been "convicted" and is not a "criminal").3 Thus, we reverse the disposition order; on remand the trial court must file a new order without the improper cost.4 Affirmed in part, reversed in part, and remanded.

2015See D.A. v. State, 11 So.3d 423, 424 (Fla. 4th DCA 2009) (holding that it was error to impose the cost of prqsecution pursuant to section 938.27, Florida Statutes (2007), which applies to “convicted persons” in “criminal cases,” because a juvenile who has been adjudicated delinquent has not been “convicted” and is not a “criminal”). 3 Thus, we reverse the disposition order; on remand the tidal court must file a new order without the improper cost. 4 Affirmed in part, reversed in part, and remanded.

2014See Jackson v. State, 137 So. 3d 470, 472-73 (Fla. 4th DCA 2014) (reversing award of investigatory costs under § 938.27(1) where “no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred.”); Ogden v. State, 117 So. 3d 479, 480 (Fla. 1st DCA 2013) (striking sheriff’s and prosecutor’s investigative costs, which are discretionary, when not requested by the agencies).

2014See Jackson v. State, 137 So.3d 470, 472-73 (Fla. 4th DCA 2014) (reversing award of investigatory costs under § 938.27(1) where “no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred.”); Ogden v. State, 117 So.3d 479, 480 (Fla. 1st DCA 2013) (striking sheriffs and prosecutor’s investigative costs, which are discretionary, when not requested by the agencies).

2014See Jackson v. State, 137 So. 3d 470, 472-73 (Fla. 4th DCA 2014) (reversing award of investigatory costs under § 938.27(1) where “no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred.”); Ogden v. State, 117 So. 3d 479, 480 (Fla. 1st DCA 2013) (striking sheriff’s and prosecutor’s investigative costs, which are discretionary, when not requested by the agencies).

2014See Jackson v. State, 137 So.3d 470, 472-73 (Fla. 4th DCA 2014) (reversing award of investigatory costs under § 938.27(1) where “no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred.”); Ogden v. State, 117 So.3d 479, 480 (Fla. 1st DCA 2013) (striking sheriffs and prosecutor’s investigative costs, which are discretionary, when not requested by the agencies).

2007See Ortiz v. State, 884 So.2d 77 (Fla. 2d DCA 2004).

2006Ortiz v. State, 884 So.2d 77, 78 (Fla. 2d DCA 2004).

2014Sims v. State, 110 So.3d 975, 976 (Fla. 1st DCA 2013); Massengale v. State, 69 So.3d 1095 (Fla. 1st DCA 2011).

2013See Massengale v. State, 69 So.3d 1095, 1095 (Fla. 1st DCA 2011) (accepting the appellant’s argument that the trial court erred in imposing the mandatory $100 cost of prosecution pursuant to the 2008 version of section 938.27(8) because the appellant’s offenses were committed before the amendment’s effective date); see also Hills v. State, 90 So.3d 927, 928 (Fla. 1st DCA 2012) (noting that while the imposition of the costs of prosecution pursuant to section 938.27 was historically discretionary and, therefore, required a request by the State for such costs, the 2008 amendment removed the trial

2026See Kee v. State, 385 So. 3d 139 , 139-40 (Fla. 4th DCA 2024) ("When the trial court fails to make the appropriate factual findings regarding prosecution costs above the statutory minimum or orally announce a higher amount at sentencing, prosecution costs will be reduced to the mandatory minimum amount." (citing Desrosiers v. State, 286 So. 3d 297 , 300 (Fla. 4th DCA 2019))). 2 Accordingly, we affirm Mr. Gilbreth's judgment and sentences in all respects but reverse the denial of his rule 3.800(b)(2) motion and remand with instructions for the trial court to strike one of the duplicative $50 co

2024In Hills v. State, 90 So. 3d 927, 928 (Fla. 1st DCA 2012), the First District noted that “the mandatory provisions of section 938.27(8) and the other amendments restricting the trial judge’s discretion have negated any reason to require the state attorney to request the minimum costs [of prosecution] for the state attorney . . . . [thus], the trial court did not commit error by imposing the $100 statutory minimum costs under section 938.27(8), Florida Statutes (2010) without a request from the state on the record . . . .” See also Parks v. State, 371 So. 3d 392 , 393–94 (Fla. 1st DCA 2023); Wa

2024See Icon v. State, 322 So. 3d 117 , 119 (Fla. 4th DCA 2021) (explaining that assessment of prosecution costs pursuant to section 938.27, Florida Statutes, need not be supported by evidence if the defendant affirmatively agrees to pay the requested amount); Watts v. State, 973 So. 2d 1271, 1273 (Fla. 2d DCA 2008) (concluding that stipulation to payment of specific amount of costs pursuant to section 938.27, Florida Statutes, waives entitlement to any further hearing on such costs).

2024See Icon v. State, 322 So. 3d 117 , 119 (Fla. 4th DCA 2021) (explaining that assessment of prosecution costs pursuant to section 938.27, Florida Statutes, need not be supported by evidence if the defendant affirmatively agrees to pay the requested amount); Watts v. State, 973 So. 2d 1271, 1273 (Fla. 2d DCA 2008) (concluding that stipulation to payment of specific amount of costs pursuant to section 938.27, Florida Statutes, waives entitlement to any further hearing on such costs).

2016See Davis v. State, 42 So.3d 807, 808-09 (Fla. 1st DCA 2010).

2014Sims v. State, 110 So.3d 975, 976 (Fla. 1st DCA 2013); Massengale v. State, 69 So.3d 1095 (Fla. 1st DCA 2011).

2012See James v. State, 662 So.2d 995 (Fla. 2d DCA 1995) (reversing costs of prosecution absent record request under predecessor section 939.01, Fla. Stat.).

2012See Thompson v. State, 699 So.2d 329 (Fla. 2d DCA 1997) (holding that extradition costs are costs of prosecution).