Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2548 _____________________________ ELLERY LAMAR LASTER, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge. November 24, 2021 WINOKUR, J. Ellery Lamar Laster, Jr. appeals the trial court’s denial of both his motion for judgment of acquittal and his motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We affirm both orders, but write to address the order denying Laster’s Rule 3.800(b)(2) motion. Section 938.27(8), Florida Statutes, permits the State to recover costs of prosecution, at no less than $100 per felony case. The statute permits the court to “set a higher amount upon a showing of sufficient proof of higher costs incurred.” Id. At the sentencing hearing, the State requested “an additional costs” to cover the expenses related to the victim’s appearance at trial. When asked whether Laster’s counsel objected to imposition of the additional costs, he responded, “I don’t have any legal basis to object.” The court then imposed the requested amount as a cost of prosecution. After filing a notice of appeal, Laster filed a motion to correct sentencing error under rule 3.800(b)(2). Citing a case from the Fourth District, Laster claimed that the trial court cannot impose additional costs under section 938.27(8), unless evidence supports the additional costs. Brown v. State, 189 So. 3d 837 (Fla. 4th DCA 2015). The trial court denied the motion, citing Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010), which held that the same error alleged here “is one in the sentencing process that required a contemporaneous objection” at sentencing, and could not be raised by rule 3.800(b) motion. Id. at 209. In Rivera, the trial court orally imposed additional costs without objection. Id. at 208. The defendant failed to raise the lack of documentation supporting imposition of additional costs until he filed a rule 3.800(b) motion. Id. at 208–09. The Rivera court concluded that the alleged error was an error in the sentencing process that required a contemporaneous objection—it could not be preserved via a rule 3.800(b)(2) motion. Id. at 209. See Jackson v. State, 983 So. 2d 562, 573 (Fla. 2008) (limiting errors that may be raised under rule 3.800(b) to errors in the “sentencing process;” “[t]he rule was never intended to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under rule 3.800(b)”). We agree with the Second District’s decision in Rivera. Here, the trial court orally pronounced additional costs of prosecution, to which Laster failed to object in spite of an explicit request from the judge. It was not until he filed his rule 3.800(b) motion that Laster changed his mind and claimed that the State produced insufficient evidence supporting the additional costs. This is not an appropriate use of a rule 3.800(b) motion. Hogle v. State, 250 So. 3d 178 (Fla. 1st DCA 2018), does not require a different result. In Hogle, this Court reversed a trial court’s oral pronouncement of a lump sum where there was no indication that defense counsel was given the opportunity to object 2 to the specific costs imposed and the costs were not delineated until the written judgment and sentence was rendered. Because some of the delineated costs and fines in the written judgment and sentence were in excess of statutorily mandated costs, the issue of whether the costs were legally imposed as part of the sentence was properly preserved by a rule 3.800(b) motion. Unlike in Hogle, Laster attempted to preserve a sentencing process error by filing a rule 3.800(b)(2) motion. At the sentencing hearing, the State delineated the specific costs included in the requested amount. Laster had the opportunity to object and raise the arguments now raised on appeal. But not only did Laster fail to object or raise these arguments, Laster stated that he had no legal basis for objecting to the additional costs. Because we agree with the holding in Rivera, the order denying the motion to correct sentencing error is AFFIRMED. NORDBY and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Tabitha R. Herrera, Assistant Attorney General, Tallahassee, for Appellee. 3