MARK GORDON ANDERSON v. STATE OF FLORIDA , 229 So. 3d 383 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARK GORDON ANDERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-4676
[ October 18, 2017 ]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562013CF001314A.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
TAYLOR, J.
Mark Gordon Anderson appeals his conviction and sentence for lewd or
lascivious molestation of a victim under 12 by a person 18 years of age or
older. We affirm appellant’s conviction, but reverse the trial court’s
imposition of a lump sum of $2,269 in costs in the order of probation
without providing a breakdown of the costs and an explanation as to what
they represent.
The following facts are relevant to the issues on appeal. Before trial,
the State filed a notice of intent to introduce child hearsay statements.
Appellant filed a written objection to any child hearsay statements being
admitted at trial, but did not elaborate on the legal grounds for the
objection. At the evidentiary hearing on the child hearsay issue, defense
counsel argued that the child hearsay statements were unreliable and
lacked corroboration. The trial court entered a written order finding the
child hearsay to be admissible.
At the beginning of trial, defense counsel renewed his “objection to the
inclusion of child hearsay.” The trial court noted that it had issued a
written order on that issue.
The victim testified regarding the facts giving rise to the molestation
charge. When the victim’s hearsay statements were introduced during
trial through other witnesses, defense counsel did not object. Defense
counsel’s trial strategy—both in his opening statements and during closing
argument—was to emphasize the inconsistencies in the victim’s story.
The jury found appellant guilty as charged. The trial court sentenced
appellant to 25 years in prison followed by sex offender probation for life.
The probation order states that appellant shall pay “court Costs, Fees, and
Fines” in the amount of $2,269.
In appellant’s first issue on appeal, he argues that the trial court erred
by allowing the state to introduce repetitive child hearsay statements of
the victim. Appellant complains that the state presented not only the
victim’s testimony, but also (1) the written statement the victim gave to her
mother, (2) the victim’s statement to an officer, and (3) the victim’s
recorded statement to a detective. Appellant contends that under section
90.403, Florida Statutes, the prejudicial impact of the victim’s repeated
hearsay statements substantially outweighed any probative value of the
evidence.
We find that this specific challenge to the admission of the victim’s child
hearsay statements was not preserved for appellate review. It is well-
established that a child victim’s hearsay statement which qualifies for the
statutory exception in section 90.803(23) is subject to the balancing test
found in section 90.403. See Pardo v. State, 596 So. 2d 665, 667–68 (Fla.
1992). Here, however, appellant never objected below on the ground that
the probative value of the child hearsay was substantially outweighed by
the danger of unfair prejudice or the needless presentation of cumulative
evidence. Therefore, appellant failed to preserve this issue for appellate
review. See Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995)
(the defendant’s “cumulative” objection failed to preserve the argument
that the trial court failed to apply the balancing test required by section
90.403 before admitting the victim’s child hearsay statements through
four witnesses); Bass v. State, 35 So. 3d 43, 46 (Fla. 1st DCA 2010) (the
defendant failed to preserve the argument that child hearsay statements
were inadmissible under section 90.403 where defense counsel never
alerted the trial court “that his objection was based upon the contention
that the testimony’s probative value was substantially outweighed by the
needless presentation of cumulative evidence”).
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Even if this issue had been properly preserved, the trial court did not
abuse its discretion in admitting the victim’s child hearsay statements
through three different witnesses. The probative value of the child hearsay
was not substantially outweighed by the danger of unfair prejudice,
particularly where defense counsel argued that there were inconsistencies
in the victim’s story and that she was not credible. See Bass, 35 So. 3d at
46 (“Had the appellant’s argument been properly preserved, we would
conclude that his argument does not merit reversal because the probative
value of the witnesses’ testimony was not substantially outweighed by the
presentation of similar evidence of the out-of-court statement by multiple
witnesses, especially since the defense counsel was allowed to attack the
credibility of several of the witnesses at trial.”); Moore v. State, 943 So. 2d
296, 297 (Fla. 1st DCA 2006) (the trial court did not abuse its discretion
in allowing three witnesses to testify concerning the child victim’s hearsay
statements where the trial court found that the probative value of the
statements was not substantially outweighed by the danger of presenting
cumulative evidence).
In short, no error—let alone fundamental error—occurred in the trial
court’s admission of the victim’s child hearsay statements through three
different witnesses.
Appellant next argues that the trial court improperly assessed court
costs, fees, and fines without referencing the statutory authority to
support the assessments. Appellant also complains that the order of
probation does not contain a breakdown of these assessments or the basis
for the assessments.
A trial court’s ruling on a motion to correct a sentencing error is
reviewed de novo. Smith v. State, 143 So. 3d 1023, 1024 (Fla. 4th DCA
2014).
As a preliminary matter, a claim that the trial court improperly
assessed costs in a sentencing order is an error that may be preserved in
a Rule 3.800(b) motion. Jackson v. State, 983 So. 2d 562, 572–74 (Fla.
2008). Here, appellant’s challenge to the costs was properly preserved in
his Rule 3.800(b) motion.
Turning to the merits, we reject appellant’s argument to the extent
appellant contends that the trial court erred in imposing assessments
without referencing the statutory authority to support the assessments.
We have repeatedly held that it is unnecessary for a trial court to refer to
the specific statutory authority for imposing costs in a written sentencing
order. See Johnson v. State, 944 So. 2d 474, 477 (Fla. 4th DCA 2006);
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Lyons v. State, 837 So. 2d 540, 541 (Fla. 4th DCA 2003); I.B. v. State, 806
So. 2d 610, 612–13 (Fla. 4th DCA 2002), abrogated on other grounds as
stated in D.G. v. State, 896 So. 2d 920, 921–22 (Fla. 4th DCA 2005).
Indeed, this court has explicitly rejected the Second District’s contrary
decision in Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994), which
does impose such a requirement. See I.B., 806 So. 2d at 612–13 (rejecting
Sutton for the reasons stated in the concurring opinion, which concluded
that Sutton “imposed a technical requirement beyond that required in any
statute”).
Nonetheless, it is improper for a trial court to impose costs in a
sentencing order without providing an explanation in the record as to what
the costs represent, so as to permit a reviewing court to determine the
statutory authority for the costs. See Bradshaw v. State, 638 So. 2d 1024,
1025 (Fla. 1st DCA 1994) (declining to adopt “a requirement as broad as
that adopted by the Second District,” but concluding that “it is improper
to impose additional court costs without reference to statutory authority,
or an explanation in the record as to what the additional costs represent,
which is sufficiently clear to permit a reviewing court to determine the
statutory authority for the costs”) (emphasis added); I.B., 806 So. 2d at 613
(Gross, J. concurring) (“[A] court cannot willy nilly assess $1,000 in costs
in a criminal case; it must specify what the costs are for and have the legal
authority to impose them. The order in this case does not run afoul of
[cases standing for that proposition], since it identifies and breaks down
the costs and the court had the statutory authority to impose them.”); see
also Osterhoudt v. State, 214 So. 3d 550, 551 (Fla. 2017) (holding that
“trial courts must individually pronounce discretionary fees, costs, and
fines during a sentencing hearing to comply with due process
requirements”).
Here, the trial court improperly imposed a lump sum of $2,269 in
assessments in the probation order without providing an explanation as
to what the assessments represent. It is thus impossible to conduct
meaningful appellate review of the undifferentiated assessments. While
the trial court was not required to cite the specific statutory authority for
each assessment imposed, the trial court was required to provide a
breakdown of the assessments and identify what they represent, so as to
permit this court to determine the statutory authority for each
assessment. Although appellant waived a hearing as to the discretionary
costs, the $2,269 lump sum figure appears to be significantly in excess of
the sum of the statutorily mandated costs and the discretionary costs that
were individually pronounced at the sentencing hearing.
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Accordingly, we affirm appellant’s conviction, but reverse and remand
for the trial court to correct the probation order by providing a breakdown
of the statutorily mandated costs and the orally-pronounced discretionary
assessments.
Affirmed in part, Reversed in part and Remanded.
MAY and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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