FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D21-2985
LT Case No. 2019-CF-001050-XX
_____________________________
GRACE ANN KING,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for St. Johns County.
R. Lee Smith, Judge.
Michael Ufferman, of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Appellee.
December 7, 2023
EISNAUGLE, J.
We affirm Grace Ann King’s (“Appellant”) judgment and
sentence. We write to explain why we reject her argument that
the written cost order is in error because, while the written order
contains statutory citations, it does not contain citations to the
municipal ordinances authorizing two costs.
Specifically, the trial court imposed a $2 cost, citing section
938.15, Florida Statutes (2021), and a $65 cost, citing section
939.185, Florida Statutes (2021).
Section 938.15 provides that:
In addition to the costs provided for in s. 938.01,
municipalities and counties may assess an additional $2
for expenditures for criminal justice education degree
programs and training courses, including basic recruit
training, for their respective officers and employing
agency support personnel, provided such education
degree programs and training courses are approved by
the employing agency administrator, on a form provided
by the Criminal Justice Standards and Training
Commission, for local funding.
Section 939.185(1)(a) provides that:
The board of county commissioners may adopt by
ordinance an additional court cost, not to exceed $65, to
be imposed by the court when a person pleads guilty or
nolo contendere to, or is found guilty of, or adjudicated
delinquent for, any felony, misdemeanor, delinquent act,
or criminal traffic offense under the laws of this state.
Neither statute authorizes the imposition of any cost on its
own. Instead, both statutes authorize a local authority to adopt an
ordinance imposing the cost. Therefore, according to Appellant,
without a citation to the applicable ordinances in the written order,
the written cost order is in error.
Citation to Statutory Authority
Over the last couple of decades, we have often summarily
reversed cost orders with an instruction that the trial court cite
statutory authority for each cost imposed in the written order.
E.g., N.B. v. State, 48 Fla. L. Weekly D662, D662 (Fla. 5th DCA
Mar. 31, 2023) (“[T]he trial court is required to provide a citation
to the statutory basis for each cost imposed. Accordingly, we strike
2
the costs from the disposition order and remand for entry of an
amended disposition order that contains a statutory citation as to
each cost imposed by the court.” (citations omitted)); Strong v.
State,
140 So. 3d 680, 681 (Fla. 5th DCA 2014) (“We strike the
court’s imposition of fees and costs and remand for the trial court
to cite the correct statutory authority.” (citations omitted)); J.S. v.
State,
920 So. 2d 752, 753 (Fla. 5th DCA 2006) (“The law is well
settled that trial courts lack the authority to impose costs and fines
in criminal cases unless such imposition is specifically authorized
by statute and the statutory authority is cited in the defendant’s
written disposition order.” (citations omitted)). However, at least
in recent years, we have not engaged in any substantial analysis
or identified the legal basis for our decisions.
As we will now explain, the rule requiring citation to authority
for each cost imposed has a long but checkered history in Florida’s
jurisprudence. First, we will discuss the rule’s apparent origin and
development over several decades. Second, we will examine our
own decisions, demonstrate that the rule is based on due process,
and conclude that due process is satisfied when the authority is
“evident in the record.” Finally, we will explain our decision in this
case.
The Rule’s Origin and History
The rule appears to have its origin in the second district’s
summary decision over three decades ago in Allen v. State,
508 So.
2d 360 (Fla. 2d DCA 1987). In that case, without citing any
authority or offering a substantial explanation, the court struck a
condition of probation requiring payment to the court
improvement fund.
Id. at 360. In so doing, the court merely
explained that “[t]he state has offered no authority for requiring a
contribution to the court improvement fund.”
Id.
Less than three months later, the court relied on its decision
in Allen to reverse a $1,000 cost, in part, because “the record
reveal[ed] that the court failed to cite proper statutory authority
for assessing the $1,000 costs.” Brown v. State,
506 So. 2d 1068,
1068 (Fla. 2d DCA), rev. denied,
515 So. 2d 229 (Fla. 1987).
Notably, neither Allen nor Brown states that a written cost order
must always cite authority for each cost imposed.
3
The next year, the second district applied its decision in
Brown, and reversed a cost order because the “oral pronouncement
included no statutory authority for the assessment.” Moore v.
State,
525 So. 2d 1031, 1032 (Fla. 2d DCA 1988) (emphasis added).
That same year, in Stewart v. State,
522 So. 2d 518 (Fla. 2d DCA
1988), the court reversed a cost order and identified one basis for
the rule: “[t]he failure of the trial court to cite statutory authority
when it imposed the court costs deprived the appellant of the
opportunity to object to the costs.”
Id. at 518 (citation omitted).
A few years later, the second district clarified the rule in
Sutton v. State,
635 So. 2d 1032 (Fla. 2d DCA 1994). In Sutton,
the district court explained “the record must contain a citation to
the proper statutory authority supporting the assessment of such
costs.”
Id. at 1033 (emphasis added) (citation omitted).
During this early time in the rule’s development, the first
district applied a similar principle. For instance, in Bradshaw v.
State,
638 So. 2d 1024 (Fla. 1st DCA 1994), the court concluded “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.”
Id. at 1025 (emphases added). Similarly, in Gibson v. State,
577 So.
2d 1001 (Fla. 1st DCA 1991), the first district struck costs because
“the trial court did not provide the statutory authority for the
imposition of the fines in the order or at the sentencing hearing.”
Id.
at 1001 (emphasis added) (citation omitted).
But then, for reasons not entirely clear to us, the second
district announced, in what appears to be dicta, a more technical
requirement in Reyes v. State,
655 So. 2d 111 (Fla. 2d DCA 1995)
(en banc), superseded by statute, § 938.15, Fla. Stat. (1997), as
recognized in Waller v. State,
911 So. 2d 226, 227 (Fla. 2d DCA
2005). In that case, the second district stated, “[w]e remind the
trial courts that the written order on costs must contain an
appropriate citation to the statute.” Id. at 119 (emphasis added).1
1 We find Reyes both flawed and difficult to decipher. Despite
its strict-sounding pronouncement, Reyes affirmed a cost lacking a
4
Then, the following year, this more technical language gained
some traction in R.T.D. v. State,
679 So. 2d 1263 (Fla. 2d DCA
1996), when the court struck costs “because the trial court did not
cite any statutory authority for these costs in its order.”
Id. at 1264
(emphasis added). Since then, the second district has regularly
employed similar language when reversing cost orders. See Weber
v. State,
368 So. 3d 487, 489 (Fla. 2d DCA 2023); Sanders v. State,
189 So. 3d 946, 946 (Fla. 2d DCA 2016); Kirby v. State,
695 So. 2d
889, 890 (Fla. 2d DCA 1997). That said, even the second district
does not always require citation to authority in the written order.
See T.D.S. v. State,
45 So. 3d 18, 19 (Fla. 2d DCA 2010) (affirming
a cost order lacking citation to authority because “[t]he situation is
far less complex in juvenile cases”).
Since Reyes and R.T.D. were decided, the first district has been
inconsistent in its description of the rule, sometimes focusing on
citation to authority in the written order, and other times
recognizing that citation in the record is sufficient. Compare
Williams v. State,
285 So. 3d 1003, 1005 (Fla. 1st DCA 2019) (“[I]t
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.” (citation omitted)), Carter v. State,
173
So. 3d 1048, 1051 (Fla. 1st DCA 2015) (striking two costs imposed
“without appropriately citing the statutory authority for the costs
in the order”), and Bowen v. State,
702 So. 2d 298, 299 (Fla. 1st
DCA 1997) (“We strike that portion of the order by which the
appellant is directed to pay $100 to the Drug Abuse Trust Fund and
$100 to the Florida Crime Lab because the order fails to cite
statutory authority for those costs.” (citations omitted)), with
Harrison v. State,
146 So. 3d 76, 78 (Fla. 1st DCA 2014) (“While the
statutory citation because the court found the written order’s
reference to “the ‘Hillsborough County Drug Fund’ [was] a
sufficient description to adequately substitute for a statutory
citation in this case.”
Id. at 121. At the same time, Reyes
purported to adopt a forward-looking rule in apparent conflict with
its holding, stating “[f]uture cost orders, however, must describe
this fund with reference to the statute and ordinance supporting
its existence.”
Id. at 114.
5
statutory authority for these costs is not designated, the purpose
for these assessments is evident.”), receded from on other grounds
by Mills v. State,
177 So. 3d 984 (Fla. 1st DCA 2015).
In contrast, the fourth district has clearly and steadfastly
resisted any suggestion that a written cost order must always
include citation to statutory authority. Instead, it appears that
court only requires a sufficient record to permit appellate review.
See, e.g., Anderson v. State,
229 So. 3d 383, 386–87 (Fla. 4th DCA
2017) (“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.”); Lyons v.
State,
837 So. 2d 540, 541 (Fla. 4th DCA 2003) (recognizing trial
court need not specify statutory authority authorizing costs;
finding “Sutton unpersuasive”); I.B. v. State,
806 So. 2d 610, 611
(Fla. 4th DCA 2002) (“[T]he record clearly reflects that the court
stated the amount and basis for the statutorily authorized public
defender fees and costs imposed.”), abrogated on other grounds as
stated in D.G. v. State,
896 So. 2d 920, 921–22 (Fla. 4th DCA
2005).2
As one might expect, some of Florida’s courts, including the
first and second districts, have also remanded cost orders for
citation to local authority. See, e.g., Dibelka v. State,
326 So. 3d
835, 837 (Fla. 2d DCA 2021) (remanding for the trial court to
“provide the applicable county ordinance requiring the additional
cost” imposed under section 939.185); Carter v. State,
173 So. 3d at
1051 (remanding for the trial court to cite the appropriate
ordinance for the $65 cost imposed pursuant to section 939.185).
Of course, this is not surprising given the rule pertaining to
citations to statutory authority.
In contrast, and consistent with its jurisprudence, the fourth
district maintains a balanced approach, concluding that a citation
to a municipal ordinance is not per se required. See Chavis v. State,
2 We have not identified any decision in the third or sixth
districts deciding this issue.
6
247 So. 3d 9, 10 (Fla. 4th DCA 2018) (“We now hold there is
likewise no need to cite the ordinance for which court costs are
imposed.”).
The Legal Basis for the Rule: Due Process
While Florida’s decisions on this issue often employ
unguarded and imprecise language, largely untethered from any
stated legal principle,3 we think this court’s opinion in Brown v.
State,
666 So. 2d 240 (Fla. 5th DCA 1996), implicitly grounds the
rule on principles of due process.
In Brown, much like today, we were forced to clarify an overly
broad statement we made a year earlier in Samuels v. State,
649
So. 2d 272 (Fla. 5th DCA 1994). In our summary analysis set forth
in Samuels, we said “[a]ssessed costs whose statutory authority is
not specifically identified on the sentencing form should have a
reference by statute number to permit appellate review.
Otherwise, this court is left to guess at the authority.”
649 So. 2d
at 273 (emphasis added) (footnote omitted).
Although Samuels does not say that the written order itself
must always contain citations to authority without regard for the
record, there is little doubt that the language we used in Samuels
could cause confusion. Therefore, we set the record straight in
Brown, explaining:
[W]e clarify Samuels and hold that the specific statute
number is unnecessary where, as here, the defendant has
had notice and an opportunity to be heard, and the court’s
oral pronouncement and written order are specific
enough to place the parties and the reviewing court on
notice of the statutory authority for the assessment.
3 Cf. T.D.S.,
45 So. 3d at 18 (“The source of the requirement
that a cost assessment in a criminal proceeding contain a reference
to the statutory authority is not directly found in a statute or a rule
of procedure.”).
7
666 So. 2d at 242. Thus, in Brown, we affirmed the challenged cost
relying, in part, on the oral pronouncement to identify the
authority for the assessment.
Id.
Based on our own analysis in Brown, and decisions in other
courts like Bradshaw, we conclude that the requirement to disclose
the authority for the imposition of each cost is based in due process.
Amend. XIV, § 1, U.S. Const.; Art. I, § 9, Fla. Const.4 But “due
process is flexible and calls for such procedural protections as the
particular situation demands.” Clarington v. State,
314 So. 3d 495,
501 (Fla. 3d DCA 2020) (quoting Morrissey v. Brewer,
408 U.S. 471,
481 (1972)); see also Tauber v. State Bd. of Osteopathic Med.
Exam’rs,
362 So. 2d 90, 92 (Fla. 4th DCA 1978). As the United
States Supreme Court has explained, “[t]he requirements of due
process of law ‘are not technical, nor is any particular form of
procedure necessary.’” Mitchell v. W. T. Grant Co.,
416 U.S. 600,
610 (1974) (citation omitted). “The very nature of due process
negates any concept of inflexible procedures universally applicable
to every imaginable situation.”
Id. at 610 (quoting Cafeteria &
Rest. Workers v. McElroy,
367 U.S. 886, 895 (1961)).
Importantly, our recent precedent does not foreclose a rule
based on principles of due process. Even though many of our
decisions use language focused on citation to authority in the
written cost order, we have not receded from Brown or otherwise
decided that citation to authority in the written order is strictly
required even when the authority is otherwise evident in the
record.
For instance, while our description of the rule in J.S. may
have caused confusion, in our application of the law to the facts of
that case, we did not hold that the order was reversed solely for
failure to cite authority in the written order. J.S.,
920 So. 2d at
753–54. Instead, J.S. generically states “the trial court failed to
4 We are aware that some courts have identified a “practical”
purpose for the rule—to allow “the clerk of court to know the
precise nature of the assessment.” Reyes,
655 So. 2d at 113, 121;
see also T.D.S.,
45 So. 3d at 19. However, we have found no legal
basis for a requirement that benefits the clerk of court, statutory
or otherwise.
8
cite to any legal authority justifying the imposition of the fine,”
without indicating if citation in the written order is always
required or if citation elsewhere in the record would be sufficient.
Id. at 753.
Indeed, even J.S. considered more than the written order. In
that case we reasoned that the trial court “acknowledged on the
record that it had no statutory basis upon which to impose the
fine.” Id. at 754 (emphasis added). In short, J.S. quite expressly
considered the propriety of a fine where the written order
contained no citation to authority and the record affirmatively
established that there was no such authority. As a result, J.S. did
not, and could not, hold that a written cost order must always
contain citations to authority even when the authority is otherwise
evident in the record.
Moreover, this court routinely relies on opinions that do not
imply any technical requirement exists. For example, recently in
N.B., we struck a cost and remanded with instructions to enter “an
amended disposition order that contains a statutory citation as to
each cost imposed by the court.” 48 Fla. L. Weekly at D662. In so
doing, we relied on this court’s precedent in V.D. v. State,
922 So.
2d 1037 (Fla. 5th DCA 2006), and the first district’s decision in
Bradshaw—neither of which implies any rigid requirement for
citation to authority in a written order. See also J.S.,
920 So. 2d
at 753 (relying on Bradshaw).
In V.D., we reasoned that a “trial court must provide a
statutory basis for every cost imposed,” saying nothing about
whether support for the cost must be in the written order or merely
evident in the record. V.D.,
922 So. 2d at 1038. And as we
previously observed, Bradshaw concluded that “an explanation in
the record as to what the additional costs represent” is sufficient.
638 So. 2d at 1025 (emphasis added).
This court’s limited precedent concerning citations to local
authority is no different. We are aware of at least two summary
opinions in which we have referenced a written cost order’s lack of
citation to municipal authorities. See Charles v. State,
292 So. 3d
1270, 1271 (Fla. 5th DCA 2020); Cash v. State,
286 So. 3d 384, 385
(Fla. 5th DCA 2019). But again, neither case considers whether a
9
cost order is proper when authority for the cost imposed is
otherwise evident in the record. See Charles, 292 So. 3d at 1271;
Cash, 286 So. 3d at 385; cf. Harrison,
146 So. 3d at 78.
In short, consistent with the first district’s pronouncement in
Bradshaw, we made it clear almost three decades ago in Brown
that there is no strict rule requiring citation to authority in every
written cost order even if the authority is otherwise evident in the
record. And while our many decisions of late did not heed the
lesson learned from our lack of clarity in Samuels, as we have
explained, none of our decisions have receded from, or even
adopted a rule in direct conflict with, our holding in Brown.
The Cost Order in this Case
Turning to this case, given our conclusion that the
requirement for a citation to authority is based on due process, we
reject any technical requirement that citation to local authority
must always appear in every written cost order. While a citation
in the written order might be the best practice, due process is
satisfied, and appellate review possible, when there is citation to
authority in the record or when the basis for each cost is otherwise
evident in the record.
Having clarified the basis for the requirement that the record
disclose the authority for costs imposed, we affirm the cost order
in this case because Appellant does not argue on appeal that the
failure to cite the local authority in the written cost order in any
way deprived her of due process. Specifically, Appellant does not
argue that the record lacks sufficient information to permit review
of the order or that authority for the costs imposed is not evident
in the record.
Instead, Appellant’s argument is based solely on a rigid, per
se requirement for citation to local authority in every written cost
order—an argument we reject. As such, Appellant has not carried
her burden to demonstrate error on appeal. See Cox v. Great Am.
Ins. Co.,
203 So. 3d 204, 205 (Fla. 4th DCA 2016) (“[O]n appeal[,]
the duty rests upon the appealing party to make error clearly
10
appear.” (quoting Lynn v. City of Fort Lauderdale,
81 So. 2d 511,
513 (Fla. 1955))).
AFFIRMED.
EDWARDS, C.J., concurs.
PRATT, J., concurs with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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11
Case No. 5D21-2985
LT Case No. 2019-CF-001050-XX
PRATT, J., concurring.
The panel opinion carefully canvasses and contextualizes our
court’s precedent, which often has summarily remanded cost
orders with instructions to cite statutory authority for the imposed
costs. Until today, our court never fully explained the legal basis
for that precedent. In failing to identify the underlying law for the
citation requirement that we imposed, many of our previous
decisions resembled the orders that we remanded—disposition
without exposition. I believe we owe trial courts an explanation
when we disturb their orders, and I support the panel opinion’s
effort to build on Brown v. State,
666 So. 2d 240 (Fla. 5th DCA
1996), and provide a full foundation for our prior decisions.
Our precedent in this area can have only three bases in law: a
statute, a procedural rule, or a constitutional requirement. With
no on-point statute or procedural rule, see T.D.S. v. State,
45 So.
3d 18, 18 (Fla. 2d DCA 2010), the panel opinion lands on due
process as the source. Indeed, the alternative could pose
constitutional concerns. Were our citation requirement to lack any
foundation in due process, we would be left with a rule untethered
to any substantive law and serving only a “practical” purpose,
Reyes v. State,
655 So. 2d 111, 113, 114 (Fla. 2d DCA 1995) (en
banc)—a freestanding regulation of the form and content of trial
court orders that operates much like a rule of court practice and
procedure. The district courts of appeal lack authority to create
such rules. That authority belongs to the Florida Supreme Court.
See Art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules
for the practice and procedure in all courts . . . .”); see also Haven
Fed. Sav. & Loan Ass’n v. Kirian,
579 So. 2d 730, 732 (Fla. 1991)
(describing the Florida Supreme Court’s “exclusive authority to
regulate” court practice and procedure); but cf. Bernhardt v. State,
288 So. 2d 490, 496 (Fla. 1974) (“Rules of practice and procedure
adopted by this Court super[s]ede any legislative enactment
governing practice and procedure to [the] extent that statute and
rule may be inconsistent.” (emphases added)).
I therefore join in the panel opinion, which grounds our
precedent in due process and avoids the constitutional concerns to
12
which a different path might lead. But I do so with some
reservation. To the best of my knowledge, our court never has
received briefing on the issue about which we opine today: whether
due process requires that a defendant receive notice (whether from
the record or from the written order) not only of a cost’s imposition,
but also of its legal basis. We certainly had no such briefing before
us here. And there may be some reason to doubt whether due
process imposes such a requirement. I take the theory to be that
defendants must have notice of a cost’s asserted legal basis—and
not just notice of its imposition—to enable meaningful rehearing
or appellate review. But it’s unclear to me why a defendant facing
an unexplained cost with no obvious authorizing statute or
ordinance couldn’t appeal (or move for rehearing) and argue that
the cost was imposed ultra vires. Perhaps there are some cases—
particularly those presenting commingled costs—in which a
failure to itemize the costs might inhibit effective appellate review.
But at a minimum, it seems that a defendant’s inability to
ascertain the legal basis for a cost, whether from the record or from
the written order, does not in itself preclude him from
meaningfully challenging it.
Notwithstanding my reservations, I recognize that neither
party in this case has asked us to revisit our precedent. And the
panel opinion does a great service to our court by plausibly
grounding our prior decisions in a substantive legal principle that
avoids encroaching on our reviewing court’s rulemaking authority.
Indeed, I cannot think of a more persuasive justification for our
precedent than the one that the opinion offers. I thus join the
opinion, with the caveat that I would be open to reexamining our
precedent en banc in a future case that presents thoughtful
briefing on the issue.
13
