Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SUSAN DIBELKA, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-4085 October 1, 2021 BY ORDER OF THE COURT: Upon consideration of appellant's motion for rehearing and/or clarification: IT IS ORDERED that the motion for rehearing is granted to the extent that the opinion dated August 4, 2021, is withdrawn and the attached opinion is substituted therefor. No further motions will be entertained. I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. MARY ELIZABETH KUENZEL CLERK 2 DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SUSAN DIBELKA, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-4085 October 1, 2021 Appeal from the Circuit Court for Polk County; William Sites, Judge. Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Judge. Susan Dibelka appeals her conviction and sentence for petit theft. We affirm the conviction without comment but reverse and remand for further proceedings with respect to the Monetary Obligations Order imposing costs and fines. Although Ms. Dibelka was originally charged with felony grand theft, a jury found her guilty of only petit theft, a lesser included misdemeanor. Upon adjudicating her guilty, the trial court filled out a form Monetary Obligations Order that imposed certain mandatory and discretionary costs and fines upon Ms. Dibelka.1 During the pendency of this appeal, Ms. Dibelka moved in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to correct certain errors in the Monetary Obligations Order, which motion was not timely ruled upon and is thereby deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B) (providing that motions to correct sentencing errors filed pending appeal are deemed denied if the trial court does not file an order ruling upon them within sixty days). Challenged in this appeal are four costs line items under two separate headings of the form Monetary Obligations Order: Mandatory Costs and Additional Mandatory Costs. Each line item is addressed separately below. 1 A copy of the order is appended to this opinion. 2 "Mandatory Costs" Category "Misdemeanor" Line Item In the form Monetary Obligations Order, the trial court checked the box for the "Misdemeanor" line item under the "Mandatory Costs" heading. The sum for that line is prefilled at $318, and the form order cites to eight statutory authorities in support. The cited authorities and the relevant mandatory costs associated with Ms. Dibelka's misdemeanor adjudication are set forth in the following table:2 Relevant Cited Authorities Subject Matter Mandatory Costs Crimes Compensation § 938.03, Fla. Stat. $50 Trust Fund Additional Court § 938.05, Fla. Stat. Costs for $60 Misdemeanors Criminal Justice § 938.15, Fla. Stat. Education for Local $2 Government § 775.083(2), Fla. Stat. Fines $20 § 938.19, Fla. Stat., & Polk County Ordinance Teen Courts $3 05-046 Costs of Prosecution § 938.27(8), Fla. Stat. $100 & Investigation 2 Although the Monetary Obligations Order does not specify the year of any of the cited statutory authorities, under the facts of this case, all citations necessarily point to the 2019 versions. 3 Crime Stoppers § 938.06, Fla. Stat. $20 Programs Total $255 As reflected in the table, the eight authorities cited in the form Monetary Obligations Order to support the $318 obligation authorize a maximum mandatory cost obligation of only $255 for Ms. Dibelka's misdemeanor conviction. We acknowledge that section 938.27(8) does give the court the discretion to order a higher amount for the costs of prosecution and investigation, but the line item at issue here addresses only the mandatory portion. Indeed, as addressed in more detail infra, the trial court in fact exercised its discretion under this statute to award additional costs of prosecution and investigation in other parts of the Monetary Obligations Order under review. Thus, we conclude that the costs imposed upon Ms. Dibelka under this line item exceed the statutory amount. Ms. Dibelka argues, and we agree, that the inconsistency between the amount ordered and the maximum mandatory obligation is likely due to an erroneous statutory citation on the form Monetary Obligations Order. It appears that the citation to 4 section 938.15 in this line item should instead point to section 939.185, which authorizes a board of county commissioners to adopt by ordinance an additional cost of up to $65. First, the form order duplicates the citation to section 938.15 later in the "Adjudicated Guilty" line item, even though section 938.15 by its terms contemplates only a single cost obligation. And second, as discussed infra, the plain language of section 938.15 tethers itself to section 938.01, both of which are cited together in the "Adjudicated Guilty" line item. Because the Monetary Obligations Order imposes mandatory obligations in excess of the statutorily authorized amount, we must remand it for correction. If, as Ms. Dibelka contends, the form order erroneously cites section 938.15 in the "Misdemeanor" line item instead of section 939.185, then the trial court shall correct the citation and also provide the applicable county ordinance requiring the additional cost. See Summers v. State, 276 So. 3d 1012, 1013 (Fla. 2d DCA 2019) (affirming costs assessment made under section 939.185 but remanding "for the limited purpose of correcting the order assessing fines and costs to reflect the 5 applicable county ordinance"). Otherwise, the court shall subtract $2 from this line item to correct the duplication. "Adjudicated Guilty" Line Item The trial court also checked the box for the "Adjudicated Guilty" line item under the "Mandatory Costs" heading of the form Monetary Obligations Order. The sum for that line is prefilled at $5, and the order cites to two statutory authorities in support: section 938.01(1) (Additional Court Cost Clearing Trust Fund) and section 938.15 (Criminal Justice Education for Local Government). As already identified, this citation to section 938.15 is duplicative of the one in the "Misdemeanor" line item. Ms. Dibelka concedes that the imposition of a single $2 cost pursuant to section 938.15 is appropriate but asks that "$2 be subtracted from the total in one of those two lines." As a threshold matter, both of these costs appear to belong in this line of the order. Section 938.01(1) requires the imposition of a $3 cost for a conviction of violating any criminal statute, not just misdemeanors. And section 938.15 provides that the $2 cost it authorizes is "[i]n addition to the costs provided for in s. 938.01," thereby expressly linking the two statutes. Thus, the $5 cost 6 imposed in this line appears generally appropriate, provided that the other issues discussed herein are resolved. However, similar to section 939.185, section 938.15 does not itself impose an additional cost; instead, it authorizes local governments to do so. See § 938.15 ("[M]unicipalities and counties may assess an additional $2 . . . ."). As Ms. Dibelka correctly identifies, the Monetary Obligations Order does not provide any information regarding the corresponding municipal or county authority imposing this cost. Thus, on remand the court shall identify the applicable local authority. See, e.g., Summers, 276 So. 3d at 1013 (remanding for identification of applicable county ordinance for cost imposed under analogous section 939.185); see also Ayoub v. State, 901 So. 2d 311, 314-15 (Fla. 2d DCA 2005) (affirming cost award under section 938.17, Florida Statutes (2002), but "direct[ing] that future cost orders include a reference to both section 938.17 and the applicable ordinance"). "Additional Mandatory Costs" Category "Additional SAO Costs of Prosecution" Line Item The trial court also checked the box for the "Additional [State Attorney's Office] Costs of Prosecution" line item under the heading 7 for "Additional Mandatory Costs" and handwrote a value of $100. The only authority cited for this obligation is section 938.27(8), which addresses the "costs of prosecution and investigation." Ms. Dibelka argues this cost is duplicative of the one in the prior section and not supported by any additional evidence. Like the costs in the "Adjudicated Guilty" line item discussed supra, she concedes that one of the mandatory obligations is appropriate but asserts the unsupported duplication should be corrected. We agree. Section 938.27(8) requires the trial court to set the state attorney costs at "no less than $100 per case when a felony offense is charged," as was the case here. But the same subsection also provides that the "court may set a higher amount upon a showing of sufficient proof of higher costs incurred." Here, the order imposes four separate obligations upon Ms. Dibelka for the costs of prosecution and investigation under section 938.27: first, $100 under the "Mandatory Costs" heading in the "Misdemeanor" line item addressed supra; second, $100 here in the "Additional SAO Costs of Prosecution" line item under the "Additional Mandatory Costs" heading; third, $270.08 in a line item 8 for "Investigation Costs to PCSO [Polk County Sheriff's Office]" under the heading "Discretionary Costs/Fees"; and fourth, $229.15 in another line item under the "Discretionary Costs/Fees" heading for "Other," where the trial court handwrote "SAO inv." As discussed supra in addressing the "Misdemeanor" line item under the "Mandatory Costs" heading, the court properly imposed the $100 minimum cost obligation for the State Attorney's office for Ms. Dibelka's felony charge under section 938.27(8). It also properly imposed additional investigative costs of $270.08 to the Polk County Sherriff's Office and of $229.15 to the State Attorney's Office under section 938.27(7), both of which are supported by affidavits in the record and conceded by Ms. Dibelka to be appropriate. However, the second $100 charge for "Additional SAO Costs of Prosecution" is not supported by any record evidence. Although the trial court had the discretion to award more for costs incurred, section 938.27(8) expressly requires "a showing of sufficient proof" first, which is not reflected in the record. Accordingly, the State failed to meet its burden to substantiate this additional obligation. See Collins v. State, 145 So. 3d 930, 931 (Fla. 2d DCA 2014) ("It was 9 error for the trial court to impose the $400 amount over the mandatory $100 cost of prosecution without requiring the State to provide documentation for the additional amount."). If the State complies with the procedural requirements of the statute on remand, then the court may reimpose the additional amount. See id. "Public Defender's Fee" Line Item Finally, Ms. Dibelka challenges the imposition of the statutory minimum $100 public defender's fee on the basis that she was not given notice of her right to contest it as required under Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018). However, the Florida Supreme Court has now disapproved of Newton, holding instead that "[w]hen imposing the statutory minimum, the trial court need not announce the imposition of the public defender's fee or inform the defendant of a right to contest the fee." State v. J.A.R., 46 Fla. L. Weekly S157, S158 (Fla. June 3, 2021). Accordingly, we affirm the imposition of this statutory minimum fee. Conclusion We affirm Ms. Dibelka's conviction but reverse and remand the Monetary Obligations Order for further proceedings consistent with 10 this opinion. We encourage the trial court to consider amending its form Monetary Obligations Order to prevent the errors and omissions discussed herein from occurring in other cases in the future. Affirmed in part, reversed in part, and remanded for further proceedings. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 11 12