5D11-2029 Elliot Martinez v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D11-2029

Case Date: 06/11/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

ELLIOT MARTINEZ, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed June 15, 2012 Appeal from the Circuit Court for Orange County, Alan S. Apte, Judge. James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D11-2029

PALMER, J. Elliot Martinez (defendant) appeals the trial court's order granting the State's motion to tax additional costs of prosecution, entered after the defendant had begun serving his sentence. We reverse.

The defendant was convicted of battery. In connection with his sentencing, the trial court assessed $100 in costs of prosecution without expressing an intent to assess further costs at a later time. The defendant's convictions and sentences were affirmed on direct appeal. Martinez v. State, 56 So. 3d 22 (Fla. 5th DCA 2011). The State thereafter filed a motion to tax the costs of extraditing the defendant from Pennsylvania to Florida as costs of prosecution under section 938.27, Florida Statutes (2011). The trial court granted the motion and imposed the costs. The defendant appeals the costs order, arguing that the trial court violated double jeopardy principles by increasing the amount of his prosecution costs, thereby increasing his sentence after he had begun serving it. We agree. Under double jeopardy principles, a defendant's sentence cannot be increased after he begins serving it. Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003).1 However, to be part of a sentence for double jeopardy purposes, a particular sanction must constitute criminal, rather than civil, punishment. See Hudson v. United States, 522 U.S. 93, 98-99 (1997). "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must . . . ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Id. at 99 (citation and quotation marks omitted). Thus, in determining whether extradition costs constitute criminal punishment, we focus on the authorizing statutes.

An exception exists where the defendant has no legitimate expectation of finality in the sentence. See Dunbar v. State, 37 Fla. L. Weekly S329 (Fla. May 3, 2012). Unlike the invalid original sentence in Dunbar, here the original sentence was not rendered invalid by the trial court's failure to include costs the State had yet to request. 2

1

Extradition costs are imposed and enforced as costs of prosecution under sections 938.27 and 938.30. See Thompson v. State, 699 So. 2d 329 (Fla. 2d DCA 1997) (holding that extradition costs are costs of prosecution). Several attributes of this statutory mechanism indicate that the Legislature intended these costs of prosecution to constitute a criminal sanction. Importantly, the sanction applies "[i]n all criminal and violation-of-probation or community-control cases."

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