FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-2947
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KAHASIM RASHID BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the County Court for Escambia County.
Kerra Smith, Judge.
September 21, 2022
ORDER STRIKING ANDERS BRIEF
PER CURIAM.
Following a jury trial, Appellant was convicted of one count of
driving under the influence (DUI) causing property damage
(second offense), and one count of leaving the scene of an accident
involving property damage. Appellant’s counsel filed a brief
pursuant to Anders v. California,
386 U.S. 738,
87 S.Ct. 1396,
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L.Ed.2d 493 (1967), and this Court has conducted the review
required by Anders, State v. Causey,
503 So. 2d 321 (Fla. 1987),
and Florida Rule of Appellate Procedure 9.140(g)(2)(A). We affirm
the judgment, but because our review reveals several sentencing
errors, we strike the Anders brief to allow counsel to seek relief
under Florida Rule of Criminal Procedure 3.800(b)(2). See Fla. R.
App. P. 9.140(g)(2)(b).
First, the trial court erred by ordering that Appellant’s
driver’s license be suspended for five years. A five-year suspension
is authorized only when the driver had another DUI conviction
within the preceding five years. § 322.28(2)(a)2., Fla. Stat. (2020).
Appellant’s previous DUI conviction occurred more than five years
before this one.
Second, only $374 of the $456 court costs assessed on the DUI
count are supported by the statutes and county ordinances listed
in the court’s written order. See §§ 938.01, 938.03, 938.05, 938.06,
938.07, 938.13, 938.19, 939.185, 775.083(2), 318.18(17), Fla. Stat.;
ESCAMBIA CNTY., FLA. ORDINANCES §§ 34-7, 34-9 (authority for up
to $374 in costs). The remaining $82 in costs was imposed in error.
While it is not clear what the additional $82 in costs covered,
two of the other provisions listed in the trial court’s order—sections
938.27 and 318.18(18)—do not apply to this case. Under section
938.27, a trial court may assess a minimum of $50 in prosecution
costs for a misdemeanor, but the State is required to request such
costs (which it did not do here), and the State is further required
to demonstrate a factual basis for assessing costs above the $50
minimum (which it also did not do here). See Richards v. State,
288
So. 3d 574, 576 (Fla. 2020) (holding that the State is required to
ask a trial court to assess prosecution costs); Jenkins v. State,
332
So. 3d 1013, 1018 (Fla. 4th DCA 2022) (holding that the State
bears the burden of proving that costs of prosecution exceed $50
statutory minimum).
Section 318.18(18) provides for a $12.50 administrative fee,
but it only applies with respect to noncriminal violations, and is
thus inapposite to Appellant’s DUI conviction. The final remaining
listed provision, section 938.15, provides for a $2 assessment for
criminal justice education. However, to be operative, it requires
enactment via local government ordinance. No such ordinance is
cited in the written order as is required. See Snowden v. State,
685
So. 2d 974, 975 (Fla. 1st DCA 1996) (holding that authority for a
court cost imposed in a criminal case must be cited in trial court’s
written order).
To the extent the unaccounted-for sum of $82 in court costs
consists of prosecution costs under section 938.27, the costs may
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not be re-imposed on remand. See Skinkle v. State, No. 5D21-2504,
2022 WL 1592566 at *1 (Fla. 5th DCA May 20, 2022) (holding that
State’s failure to request prosecution costs constitutes a waiver of
those costs). However, to the extent the sum consists of other court
costs, it may be re-imposed on remand following the proper
procedures (i.e., citation to the controlling statutes and/or local
ordinances). See Snowden,
685 So. 2d at 975.
The third sentencing error lies in the $30 State facilities
surcharge imposed as to Count 3 under section 318.18(13)(a)1.,
Florida Statutes. Like section 938.15, this surcharge requires
adoption by local government ordinance. The ordinance is not cited
in the written order as required. The surcharge may be re-imposed
with the necessary citations. See
id.
The final two sentencing errors lie in the trial court’s
modification of Appellant’s monetary obligations. On Appellant’s
motion, the trial court authorized Appellant to perform community
service at a rate of $10 per hour in lieu of paying fines and court
costs. As to the fines, this alternative is only permissible with
respect to the DUI count (for which Appellant was fined $3,000 *).
See § 316.193(6)(m), Fla. Stat. (providing that a trial court may
“order that the defendant participate for a specified additional
period of time in public service or a community work project in lieu
of payment of that portion of the fine which the court determines
the defendant is unable to pay”). Community service is not an
authorized alternative to the payment of the $250 fine assessed on
the leaving-the-scene count. Rather, regarding this count—a
second-degree misdemeanor—section 775.083(1), Florida
Statutes, provides that “[i]f a defendant is unable to pay a fine, the
court may defer payment of the fine to a date certain.”
The last error is the trial court’s authorizing Appellant to
perform community service in lieu of paying court costs. Former
section 27.3455, Florida Statutes, which authorized trial courts to
allow a defendant to perform community service in lieu of paying
* This fine was authorized pursuant to the jury finding that
Appellant had a breath-alcohol level of 0.15 or higher. See §
316.193(4)(a), Fla. Stat.
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court costs, was amended nearly four decades ago to remove this
alternative. See Calhoun v. State,
522 So. 2d 509, 510 (Fla. 1st
DCA 1988) (ordering defendant’s resentencing pursuant to
amended version of section 27.3455, acknowledging that the
amended version deletes the community service alternative for
indigent defendants); Price v. State,
620 So. 2d 1105, 1106 (Fla. 4th
DCA 1993) (“The statute authorizing the imposition of community
service in lieu of costs was amended effective October 1, 1986, and
eliminated this alternative.”); see also Garrison v. State,
685 So. 2d
53, 55 (Fla. 2d DCA 1996); Bush v. State,
579 So. 2d 362, 363 (Fla.
4th DCA 1991); Sims v. State,
520 So. 2d 675, 675 (Fla. 5th DCA
1988).
Accordingly, on the Court’s own motion and pursuant
to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the initial
brief filed January 25, 2022, is stricken in order to permit the filing
of a motion pursuant to Florida Rule of Criminal Procedure
3.800(b)(2). Counsel for Appellant shall file the motion with the
lower tribunal within twenty days of the date of this order, and the
lower tribunal is directed to resolve the motion in accordance
with rule 3.800(b)(2)(B). The clerk of the lower tribunal shall
thereafter transmit a supplemental record on appeal pursuant
to Florida Rule of Appellate Procedure 9.140(f)(6), and counsel for
Appellant shall file an amended initial brief within twenty days
following transmittal of the supplemental record. See Adams v.
State,
197 So. 3d 641, 642 (Fla. 1st DCA 2016).
B.L. THOMAS, KELSEY, and NORDBY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
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