172 So. 3d 523
Fla. Dist. Ct. App.2015Background
- Defendant Dale Allen was charged with firearm by a felon, resisting officers with violence, and giving a false name to police.
- The jury found not guilty on the firearm charge, guilty of resisting without violence, and guilty of giving a false name.
- Trial court sentenced 180 days in jail on the convictions and imposed a $554.59 investigative fee under section 938.27.
- Section 938.27 requires costs of prosecution including investigative costs if requested by the agencies; “convicted” includes plea-based determinations.
- Defendant moved under Fla. R. Crim. P. 3.800(b)(2) to strike the investigative costs or obtain payment certification; the court did not rule (deemed denied).
- The State argued no appealability and that the fee was part of the plea; the court rejected these arguments and reversed the fee due to acquittal on the firearm charge and lack of agency request or documentation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the investigative fee could be imposed when the firearm charge was acquitted | Allen | Allen argues fee improper absent agency request and acquittal on related charge | Fee reversed; improper where acquitted and no agency request. |
| Whether the 3.800(b)(2) motion preserved the issue for appeal | State | 3.800(b)(2) allows sentencing error review; Felton applies | Issue preserved; proper use of 3.800(b)(2) to challenge costs. |
| Whether the fee was part of the plea agreement | State | No express written agreement; defense statement insufficient | Not established as part of plea; fee not properly imposed. |
Key Cases Cited
- Felton v. State, 939 So.2d 1159 (Fla. 4th DCA 2006) (reversed imposition of prosecution and investigative costs when agency failed to request)
- Jackson v. State, 983 So.2d 562 (Fla. 2008) (sentencing error review under 3.800(b)(2) for improper costs)
- Leyritz v. State, 93 So.3d 1156 (Fla. 4th DCA 2012) (acquittal of crime and conviction of lesser offense allows costs only for convicted offenses)
- Davis v. State, 42 So.3d 807 (Fla. 1st DCA 2010) (discusses costs proportional to convictions)
- Sitek v. State, 700 So.2d 119 (Fla. 2d DCA 1997) (laboratory fee implies need for explicit agreement)