Johnson v. State, 92-941

• Decision Date: 11 June 1993
• Docket Number: No. 92-941,92-941
• Citation: 620 So.2d 791
• Parties: 18 Fla. L. Week. D1416 Carlos JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 791

620 So.2d 791

18 Fla. L. Week. D1416

Carlos JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 92-941.

District Court of Appeal of Florida,

First District.

June 11, 1993.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

Appellant, Carlos Johnson, contests the portion of his sentence which requires him to pay a laboratory fee of one hundred dollars. He contends the trial court erred in assessing the state laboratory fee without making a determination of his ability to pay. We affirm.

A jury found appellant guilty as charged of the offenses of unlawful possession of cocaine and sale of cocaine. Based upon a guidelines sentencing range of 2 1/2 to 3 1/2 years, the trial court imposed concurrent 3-year sentences, with 270 days credit for time served. In addition to the term of incarceration, the trial court announced:

I am going to assess court costs and fees for a criminal case, and a hundred dollar laboratory fee. That will follow you to the Division of Corrections. If they place you on a work release program you will have to pay that.

The written sentence states in pertinent part: "In imposing the above sentence, the Court further orders pursuant to F.S. 893.13(4)(b) that the defendant pay the $100.00 Florida Crime Assessment fees."

As noted above, appellant asserts error in the assessment of the fee without a finding of his ability to pay, and further asserts the proper remedy is to strike assessment of the fee. The state counters that assessment of the laboratory fee was proper, the ability to pay is an affirmative defense which was not raised, and the trial court made such determination when the court stated that appellant would be able to pay if placed on work release prior to expiration of his sentence.

The provision at issue, section 893.13(4)(b), Florida Statutes, states:

(4) Notwithstanding any provision to the contrary of the laws of this state:

. . . . .

(b) The court may assess any defendant who pleads guilty or nolo contendere to, or is convicted of, a violation of any provision of this section, without regard to whether adjudication was withheld, in addition to any fine and other penalty provided or authorized by law, an amount of $100. Such additional assessment shall be paid to the clerk of the court, who shall forward it to the Operating Trust Fund of the Department of Law Enforcement to be used by the statewide criminal analysis laboratory system for the purposes specified in s. 943.361.

The court is authorized to order a defendant to pay such assessment if it finds that the defendant has the ability to pay the fine and the additional assessment and will not be prevented thereby from being rehabilitated or from making restitution.

(Emphasis supplied.)

Our research has disclosed only one case addressing the issue presented here, i.e., whether the trial court must make a finding of the defendant's ability to pay the $100 laboratory fee authorized by section 893.13(4)(b). In Brown v. State, 591 So.2d 1069 (Fla. 4th DCA 1991), the court reversed an assessment under section 893.13(4)(b), because the trial court failed to determine that the defendant had the ability to pay. The fourth district found the opinion in...