The substantive offenses of which King was convicted, burglary and robbery, are punishable "as provided in s. 775.082, s. 775.083, or s. 775.084." §§ 810.02, 812.13, Fla. Stat. (1989) (emphasis added). Section 775.082 specifies the maximum term of imprisonment permissible for each classification of offense. Section 775.083 details the maximum fines applicable to designated crimes and noncriminal violations. Both imprisonment under section 775.082 and a fine under section 775.083 may be imposed for a single offense because section 775.083 specifically provides that "[a] person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082." § 775.083( 1), Fla. Stat. (1989); see also Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983) (stating that where legislature specifically authorizes cumulative punishment under two statutes for the same conduct prosecutor may seek and court may impose cumulative punishment in single trial). However, nothing in section 775.084 authorizes that sentencing be imposed under that…
Effective October 1, 2000, the legislature added an explicit reference in the drug trafficking statute to both section 775.084 and section 775.083. Seech. 2000-320, § 4, Laws of Fla. However, section 775.083 has never been amended to permit a discretionary fine when a habitual offender sentence is imposed.
§ 775.083(2), Fla. Stat. (2005) (emphasis added). Although this statute applies to juveniles, it does not provide for the imposition of costs in the absence of an adjudication of delinquency. The trial court issued a judicial warning and withheld adjudication of dependency and, therefore, it incorrectly imposed the $20 cost pursuant to section 775.083(2). Parenthetically, we note that, based on a reading of section 938.03, which imposes a $50 cost regardless of whether adjudication has been entered or withheld, it is clear that the Legislature knows how to make provision for imposition of costs in juvenile proceedings in the absence of adjudication. § 938.03(1), Fla. Stat, (2005) ("Any person whose adjudication is withheld shall also be assessed such cost."). Since it did not do so within the structure of section 775.083, it is clear from both the language of the statute and its omissions that the Legislature did not intend to have costs imposed under that statute in the absence of an adjudication of delinquency.
Pursuant to section 775.083(1), a person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in section 775.082, Florida Statutes (2010). Moreover, when specifically authorized by statute, a person may be sentenced to pay a fine in lieu of any punishment described in section 775.082. § 775.083(1). In addition to any fine for any criminal offense prescribed by law, the trial court must also impose a five percent surcharge on the fine. § 938.04. However, fines under section 775.083 are discretionary and must be orally pronounced at sentencing. Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012). A discretionary fine imposed and the statutory surcharge on the fine must be stricken if the discretionary fine was not orally pronounced at sentencing. Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011).
a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The fine authorized by section 775.083(1), Florida Statutes, is also discretionary, and the state concedes it was error for the trial court to impose the $100 fine under this statute without notice or hearing and without specifically pronouncing the fine at the sentencing hearing. Because the fine was erroneously imposed, the $5 surcharge imposed pursuant to section 938.04, Florida Statutes, must likewise be reversed. See Nix, 84 So.3d at 426. On remand, the trial court may reimpose the fine and surcharge, if it so decides after providing notice to Mr. Mills and following the proper procedure. Id. If the trial court decides not to reimpose the fine and surcharge, it can enter a corrected judgment and sentence striking these amounts. Id. at 426 n. 2.
In a separate issue, Mr. Gonzalez argues that two separate fines of $50 and $65 for court costs should be stricken because they were discretionary costs and the trial court failed to orally pronounce them at sentencing. On this issue, we agree. The trial court assessed these fines as mandatory costs in accordance with section 775.083(2), Florida Statutes (2004), and section 939.185, Florida Statutes (2004), respectively. These statutes, however, did not take effect until July 1, 2004. Because Mr. Gonzalez' offense date was October 8, 2003, the trial court should have assessed these costs in accordance with the statutes in effect at that time (i.e., section 775.083(2)(b), Florida Statutes (2003), and section 939.18, Florida Statutes (2003)), which required the court to conduct an inquiry into the defendant's ability to pay the fine before imposing it.
In addition to the mandatory costs, the written judgment reflected a discretionary cost of $342.86 pursuant to section 775.083 and a surcharge of $17.14 pursuant to section 938.04. However, at sentencing, the trial court merely pronounced: “Court cost is 775, a hundred dollar Local Government Trust, a hundred cost of prosecution and $300 PD fee will be reduced to a judgment.” Contrary to the trial court's order denying Appellant's rule 3.800(b)(2) motion, this pronouncement was insufficient to notify Appellant that such a fine and surcharge would be imposed. This court has held repeatedly that the fine authorized by section 775.083 is a discretionary fine which must be specifically pronounced at the sentencing hearing. See, e.g., Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). The trial court may re-impose the discretionary fine and surcharge on remand after giving Appellant notice and following the proper procedure. See, e.g., id.; Oliver v. State, 75 So.3d 349, 350 (Fla. 1st DCA 2011).
The trial court withheld adjudication, placed J.S. on probation, and assessed court costs of $50 and $20 under section 775.083(2), Florida Statutes (2006). These costs may only be assessed when the juvenile is adjudicated delinquent. See C.M.S. v. State, 997 So.2d 520, 521 (Fla. 2d DCA 2008); T.L.S. v. State, 949 So.2d 290, 291-92 (Fla. 5th DCA 2007). Here, adjudication was withheld. Also, J.S. was charged with a single felony count. Even if J.S. had been adjudicated delinquent, the $20 cost could not be imposed because it is applicable only to offenses other than felonies. See § 775.083(2). Accordingly, we affirm the disposition, but we remand the case to the trial court with instructions to strike the imposed costs of $50 and $20.
“The fine authorized by section 775.083(1) is discretionary and, thus, it was error for the trial court to impose the $1,050 fine under this statute without specifically pronouncing the fine at the sentencing hearing.” Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). Additionally, “[b]ecause this fine was erroneously imposed, the surcharge under section 938.04, which is based on the amount of fine, must also be reversed.” Id. Similarly, under the relevant version of the statute, because the trial court erred in imposing the fine, the $20 court cost imposed pursuant to section 938.06 must also be stricken. See Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012); Mallory v. State, 70 So.3d 738 (Fla. 1st DCA 2011); Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011).