Madison v. State, 95-424

• Citation: 664 So.2d 1140
• Decision Date: 15 December 1995
• Docket Number: No. 95-424,95-424
• Parties: 20 Fla. L. Weekly D2725 Dan MADISON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1140

664 So.2d 1140

20 Fla. L. Weekly D2725

Dan MADISON, Appellant, v. STATE of Florida, Appellee.

No. 95-424.

District Court of Appeal of Florida,

Fifth District.

Dec. 15, 1995.

James B. Gibson, Public Defender, and Erin J. O'Leary, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michael D. Crotty, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, Judge.

We agree with Madison that the cost assessments of $50.00 for the drug abuse fund and $100.00 for Florida Department of Law Enforcement (FDLE) must be reversed. They were not orally pronounced at the sentencing hearing and there is no statutory reference for these costs on either the sentence or order of probation, authorizing such assessment. The state argues that section 893.13(8)(a) authorizes the drug abuse cost assessment, and that section 939.01(1) authorizes the cost assessment for FDLE. That alone is not sufficient.

Initially we note that this court has followed the practice of requiring that the trial judge identify the statutory authority for costs imposed in the written sentence or order of probation. See Brooks v. State, 649 So.2d 329 (Fla. 5th DCA 1995); Samuels v. State, 649 So.2d 272 (Fla. 5th DCA 1994), cause dismissed, 657 So.2d 1163 (Fla.1995); Valdez v. State, 639 So.2d 1135 (Fla. 5th DCA 1994). In a case where the statutory basis is not clear or easily ascertainable, the appellate court is left to guess at the authority under which a cost is assessed.

With regard to the FDLE cost assessment in this case, section 939.01(1) provides that in all criminal cases, the costs of prosecution, including investigative costs incurred by law enforcement agencies, if requested and documented by such agencies, shall be included and entered in the judgment rendered against the convicted person. Section 893.13(8)(b) provides that a court can assess any defendant convicted of a violation of that section the amount of $100.00 for the trust fund of the Department of Law Enforcement, to be used by the statewide criminal analysis laboratory system. It is not clear from the order or the record below whether the $100.00 cost is for the criminal analysis laboratory system, or is an investigative cost. This underscores the need for a clear declaration as to what purpose a cost is being assessed. See Flowers v. State, 659 So.2d 448 (Fla. 2d DCA 1995) ($100.00 laboratory fee for FDLE stricken because it was imposed without any statutory basis for its imposition); Samuels (although this court surmised that the costs to FDLE referred to costs of prosecution, cost award was stricken since its purpose was not ascertainable from the record).

Assuming that the $100.00 refers to investigative costs pursuant to section 939.01, there is no request in the record by the state and there is no documentation proffered to support the request on that basis. The statute requires both for an award under section 939.01. Thus, the cost assessment could not be sustained on this ground. See Brown v. State, 657 So.2d 1280 (Fla. 5th DCA 1995) (assessment of $250.00 investigative costs stricken...