Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4528 _____________________________ EFERM ZORAN JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. March 26, 2020 B.L. THOMAS, J. Appellant challenges the trial court’s refusal to give jury instructions on animal cruelty as a permissive lesser-included offense. He also appeals the trial court’s imposition of discretionary fines and surcharge without individual oral pronouncement. We affirm in part and reverse in part. Facts During an argument with his son, Appellant chased and threatened to kill his son and his son’s dogs. Appellant grabbed his son’s puppies, stepped on some, and threw others about 100 feet. Appellant was detained by law enforcement, and an officer found two knives in Appellant’s waistline. Appellant was charged by amended information with one count of aggravated assault with a deadly weapon, seven counts of aggravated animal cruelty, and one count of carrying a concealed weapon by a convicted felon. At trial, a veterinarian testified that she examined the puppies from the incident. One of the puppies was deceased and all but two had similar injuries which demonstrated animal cruelty caused by throwing or stomping on the puppies. During the charge conference, Appellant requested the trial court instruct the jury on animal cruelty as a permissive lesser- included offense to aggravated animal cruelty. The trial court denied the request, ruling that it was not listed as a necessarily lesser-included offense or a permissive lesser-included offense in the standard jury instructions. The jury returned with a verdict of guilt on the lesser-included offense of improper exhibition of a weapon and four of the aggravated animal cruelty charges. Appellant was sentenced as a habitual violent felony offender to ten years in prison with a five-year minimum mandatory for count VI (aggravated animal cruelty concerning the deceased puppy). The trial court imposed a sentence of five years in prison on the three other aggravated animal cruelty counts, concurrent to one another, but consecutive to count VI, for a total of fifteen years with a five-year minimum mandatory. At sentencing, the trial judge asked defense counsel, “would you be willing to waive me reading the statutory authority for [the fines and cost]?” Defense counsel agreed, and the court orally pronounced a lump sum for fines and costs stating, “there’s the $971.25 total fines in court cost, $100 cost of prosecution, $100 legal assistance lien, and $50 PD application fee.” The written judgment later reflected the discretionary costs and fines as $525 in fines pursuant to section 775.083, Florida Statutes, and $26.25 as the five percent surcharge required by section 938.04, Florida Statutes. Appellant filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asserting the trial court failed to specifically pronounce the amount of the discretionary fine and surcharge. The trial court denied the motion, stating trial counsel had waived the 2 requirement that the trial court orally pronounce the statutory authority for all fines and costs. Analysis Appellant argues the trial court erred by refusing to instruct the jury on animal cruelty as a permissive lesser-included offense. We disagree. In Anderson v. State, No. SC18-1059, 2020 WL 1057241 (Fla. Mar. 5, 2020), the Florida Supreme Court recently reiterated that a trial judge is required to give a jury instruction on a permissive lesser-included offense only “if the following two conditions are met: ‘(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.’” Id. (emphasis added) (quoting Khianthalat v. State, 974 So. 2d 359, 360 (Fla. 2008)). In addition, “[t]he elements of an offense cannot be established by mere inference.” Id. at *2 (quoting State v. Von Deck, 607 So. 2d 1288, 1289 (Fla. 1992)). These requirements ensure due process and uphold the separation of powers between “the executive branch’s exclusive discretion under Florida law to prosecute or not prosecute an individual for crimes committed.” Id. at *3. Here, as in Anderson, the amended information charging Appellant with aggravated animal cruelty did not allege all statutory elements of animal cruelty. Florida’s standard jury instructions provide the following instruction for a violation of section 828.12(1) (animal cruelty): To prove the crime of Animal Cruelty, the State must prove beyond a reasonable doubt that: Give a, b, or c as applicable. (Defendant) a. unnecessarily [overloaded] [overdrove] [tormented] [mutilated] [killed] an animal. b. deprived an animal of necessary [sustenance] [shelter]. 3 c. carried an animal in or upon a vehicle [or otherwise] in a cruel or inhumane manner. Fla. Std. Jury Instr. (Crim.) 29.13(a). The amended information in this case alleged Appellant committed aggravated animal cruelty and stated that Appellant “did intentionally and unlawfully commit an act to an animal, a pit bull puppy [], which resulted in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or caused the same to be done, contrary to [s]ection 828.12(2), Florida Statutes.” Because the amended information charging aggravated animal cruelty did not allege the essential elements of animal cruelty, the trial court correctly denied Appellant’s request for an instruction on animal cruelty as a permissive lesser-included offense. See Anderson, 2020 WL 1057241, at *3. We do agree that the trial court erred by imposing a discretionary fine and surcharge without individual oral pronouncement. Although Appellant consented to waive the reading of the statutory authority, he did not waive the reading of the specific pronouncement of each discretionary fine. The trial court also erred by failing to specifically pronounce the discretionary fines at the hearing or elaborate on the composition of the lump sum. See Nix v. State, 84 So. 3d 424, 426 (Fla. 1st DCA 2012) (“[D]iscretionary costs must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard.”); Smiley v. State, 704 So. 2d 191, 195 (Fla. 1st DCA 1997) (holding trial court erred by imposing lump sum without delineating its statutory authority and specifically what the sum comprised). We reverse and remand for the trial court to have an opportunity to orally re-impose the fines, surcharge, and costs, or strike the fines. See Nix, 84 So. 3d at 426. Should the trial court strike the fines in an amended judgment, Appellant need not be present. DeSalvo v. State, 107 So. 3d 1185, 1187 (Fla. 1st DCA 2013). AFFIRMED in part and REVERSED in part. WOLF and MAKAR, JJ., concur. 4 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. 5