Benitez v. State, 77-289

• Decision Date: 27 September 1977
• Docket Number: No. 77-289,77-289
• Citation: Benitez v. State, 350 So.2d 1100 (Fla. App. 1977)
• Parties: Ramon BENITEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1100

350 So.2d 1100

Ramon BENITEZ, Appellant, v.The STATE of Florida, Appellee.

No. 77-289.

District Court of Appeal of Florida, Third District.

Sept. 27, 1977.

Rehearing Denied Nov. 10, 1977.

Pollack, Rosenfeild, Spain & Cullen; John H. Lipinski, Miami, for appellant.

Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellee.

Before PEARSON, NATHAN and HUBBART, JJ.

PEARSON, Judge.

The controlling question presented on this appeal ¹ is whether investigative costs incurred by a defendant in a criminal proceeding may be recovered from the State as taxable costs upon defendant's acquittal of the crime charged in the criminal proceeding.We hold that as a matter of law, investigative costs are not recoverable as taxable costs.

AppellantRamon Benitez was charged by indictment with first degree murder on June 25, 1975, of effecting the death of one Mario Pineiro by shooting him with a pistol.The charge carried with it a maximum sentence of life imprisonment.

A Demand for Discovery pursuant to Fla.R.Crim.P. 3.220 was entered July 7, 1975.The appellant was granted a Motion for Continuance on November 13, 1975, alleging that depositions of four key witnesses had been taken and that said depositions revealed serious conflicts among the witnesses relative to whether or not a gun defendant submitted was in the possession of the victim at the time of the shooting.Further, the proposed witnesses were friends of the deceased and business partners with him, and it has been necessary for the defendant to discover independent witnesses relative to the matters in controversy.Also, the investigators for Dave Hellman Detective Agency had interviewed Nilas Alvarez, who is the owner of the Nilas Beauty Shop, located in the shopping plaza where the homicide occurred, and were advised by Alvarez that there were two witnesses to the event who came into her store and said they heard the victim aggressively threaten to kill the defendant.It was utterly necessary and mandatory for Ramon Benitez to expend certain sums of money in his defense to find key witnesses not supplied concurrently with his Demand for Discovery.The appellant successfully utilized a defense of self-defense; however, it was totally necessary to locate witnesses who could corroborate this defense.The incident took place in a crowded neighborhood shopping center and the possibility that there were persons who witnessed the event required independent investigators.

The reports of both the Dave Hellman Detective Agency and the La Mar Detective Agency were extensively used in counsel's cross-examination of the witnesses called on behalf of the State of Florida.Further, the witnesses produced on behalf of appellant contributed to, and were instrumental in, the ultimate verdict in the cause of not guilty on November 4, 1976.

In presenting his argument for reversal, appellant agrees that the position that he maintains is not supported by a decided case in this state.He has also failed to cite the court to any authority from any other jurisdiction holding that investigative costs are taxable costs.Appellant further agrees that there is no specific statutory authority for his position.He urges that the public policy of the state as expressed by the constitution² and the statutes is that an acquitted defendant ought to be allowed the reasonable costs necessary for his defense and, therefore, that this court should hold that an acquitted defendant should not be penalized by having to bear the costs necessary for his defense.

The record reveals that the appellant is solvent.He is, therefore, not entitled to the benefits of the public defender system or any of the statutes enacted for the protection of insolvent defendants.SeeSection 27.53(1), Florida Statutes(1975); but cf. Attorney General Opinion 075-64.

At common law, the right to recovery of costs in a criminal proceeding was unknown.SeeWarren v. Capuano, 269 So.2d 380(Fla.4th DCA1972).It is only by statutory authorization that any right to recover costs exists.See20 Am.Jur.2dCosts§ 100(1965).

Section 939.06, Florida Statutes(1975), specifically provides:

"939.06 Acquitted defendant not liable for costs.No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody.If he shall have paid any taxable costs in the case, the clerk or judge shall give him a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to him by the county."

The only way in which the investigative costs could be held to be taxable costs would be for this court to hold that the term "taxable costs," as used in Section 939.06, Florida Statutes(1975) means all reasonable and necessary costs.³Such an interpretation would be contrary to the holding of the courts of this state.SeeDoran v. State, 296 So.2d 86(Fla.2d DCA1974);Holton v. State, 311 So.2d 711(...