2D04-2218 / Lambert v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D04-2218

Case Date: 11/02/2005

Plaintiff: 2D04-2218 / Lambert

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JONATHAN LAMBERT,                                                                         )
)
Appellant,                                                                                )
)
v.                                                                                        )   Case No. 2D04-2218
)
STATE OF FLORIDA,                                                                         )
)
Appellee.                                                                                 )
___________________________________ )
Opinion filed November 2, 2005.
Appeal from the Circuit Court for Pinellas
County; R. Timothy Peters, Judge.
James Marion Moorman, Public Defender,
and Lisa Lott, Assistant Public Defender,
Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Chandra W. Dasrat,
Assistant Attorney General, Tampa, for
Appellee.
LaROSE, Judge.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Jonathan Lambert
appeals his conviction and sentence for possession of cocaine entered upon his guilty
plea.   Mr. Lambert challenges various costs imposed on him by the trial court.   He
preserved these minor sentencing issues by filing a motion to correct sentencing errors

pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).   Cost issues are properly
addressed in an Anders brief.   Palen v. State, 588 So. 2d 974, 974-75 (Fla. 1991); In re
Anders Briefs, 581 So. 2d 149, 152 (Fla. 1991).   We affirm Mr. Lambert's conviction
without further discussion and strike one cost.
$2 Criminal Justice Education Fund Fee
Mr. Lambert claims that the $2 criminal justice education fund fee under
section 938.15, Florida Statutes (2003), is a discretionary cost that the trial court
erroneously imposed without oral pronouncement.   This fee is a mandatory cost
required by an enacted local government ordinance.1   See Waller v. State, 30 Fla. L.
Weekly D2321 (Fla. 2d DCA Sept. 28, 2005) (en banc). Consequently, it need not be
orally pronounced at sentencing.   See id.   We affirm the assessment of this cost.
$27 Investigative Costs
Mr. Lambert argues that $27 in investigative costs must be stricken
because the arresting agency did not request them as required by section 938.27(1),
Florida Statutes (2003).   The record, however, includes a sworn document requesting
these investigative costs.
Mr. Lambert argues further that the trial court, before imposing these
costs, erred in failing to determine his ability to pay.   The trial court need not consider a
defendant's ability to pay in assessing costs unless the authorizing cost statute
specifically requires such a determination.   See Cook v. State, 896 So. 2d 870, 872
(Fla. 2d DCA 2005).   Court costs section 938.27 provides in relevant part as follows:
938.27   Judgment for costs on conviction. -
1      See art. I, §§ 34-4 and 54-1, Pasco County, Fla., Code of Ordinances (1994).
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(1) In all criminal cases, convicted persons are liable for
payment of the documented costs of prosecution, including
investigative costs . . .   if requested by such agencies.
These costs shall be included and entered in the judgment
rendered against the convicted person.
(2)(a)   The court shall require the defendant to pay the
costs within a specified period or in specified installments.
(c) If not otherwise provided by the court under this
section, costs shall be paid immediately.
(4) . . . The burden of demonstrating the financial
resources of the defendant and the financial needs of the
defendant is on the defendant.
Subsection (1) makes clear that documented investigative costs are
mandatory if requested by investigative agencies.   Subsection (4) relates to the trial
court's discretion under subsection (2)(a) to allow payment of costs over a specified
period or by installments based on the defendant's financial resources.   Unless the trial
court provides otherwise, subsection (2)(c) requires immediate payment of the imposed
costs.   The statute does not require the trial court to determine the defendant’s ability to
pay an investigative cost before imposing it.2   We affirm the assessment of this cost.
$150 Court Improvement Fund Cost
In contrast to section 938.27, section 939.18(1)(b), Florida Statutes
(2003), specifically states that the trial court may impose the $150 court improvement
fund cost if it (1) finds the defendant has the ability to pay and that such payment will
not interfere with his ability to pay any child support or restitution he owes.   The
imposition of this cost must be stricken; the trial court did not make the requisite finding
2    The 2003 legislative amendment to section 938.27 deleted a requirement that the
trial court consider the defendant's ability to pay in determining whether to impose
investigative costs.   Ch. 03-402, § 127, at 3746, Laws of Fla.
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of Mr. Lambert's ability to pay.   See Stewart v. State, 906 So. 2d 1128, 1129 (Fla. 2d
DCA 2005); Strickland v. State, 889 So. 2d 219, 219 (Fla. 2d DCA 2004).
Except for striking the $150 court improvement fund cost, we affirm Mr.
Lambert's conviction and sentence.
WHATLEY and VILLANTI, JJ., Concur.
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