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Mathis v. State

Florida Court of Appeals, Fifth District

January 19, 2018

KELLY MATHIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Appeal from the Circuit Court for Seminole County, Melanie F. Chase, Judge.

          Kelly Mathis, of Law Offices of Kelly B. Mathis, Jacksonville, pro se.

          Arthur I. Jacobs, of Jacobs Scholz & Associates, LLC, Fernandina Beach, Amicus Curiae for the Florida Prosecuting Attorneys Association.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

          ON MOTION FOR REVIEW

          WALLIS, J.

         Kelly Mathis moves this court to review the denial of his motion for costs, pursuant to Florida Rule of Appellate Procedure 9.400(a). Because Mathis prevailed on appeal and the State decided not to pursue further prosecution, we find that Mathis is entitled to costs pursuant to section 939.06, Florida Statutes (2016), and rule 9.400(a). We grant Mathis's motion, reverse the trial court's order denying costs, and remand with instructions to the trial court to, nunc pro tunc, tax costs pursuant to rule 9.400(a), plus prejudgment interest from the date of our mandate.

         In October 2016, this court reversed Mathis's multiple convictions and remanded for a new trial. Mathis v. State, 208 So.3d 158 (Fla. 5th DCA 2016). In December 2016, we denied the State's motion for rehearing. The State then pursued discretionary review in the Florida Supreme Court, and this court stayed its mandate pending the outcome. In January 2017, Mathis moved for appellate costs pursuant to rule 9.400(a). In February, the Florida Supreme Court denied the petition for review. This court then issued its mandate. In March, the State entered a nolle prosequi on all charges.

         Subsequently, the trial court held a hearing on the motion for costs and found that Mathis was not entitled to appellate costs because he must have a statutory right to recover costs in order to claim them. The trial court noted that section 939.06, Florida Statutes, "authorizes the imposition of certain trial court costs against the county in favor of an acquitted or discharged defendant, but [Mathis] is not seeking costs under that provision." The trial court further found that Mathis failed to establish an entitlement to costs under rule 9.400. This motion for review followed.

         We review a trial court's decision on appellate costs "only to determine whether the trial court applied the correct law and whether it abused its discretion." Fla. Power & Light Co. v. Polackwich, 705 So.2d 23, 25 (Fla. 2d DCA 1997). The prevailing party on appeal may move for appellate costs pursuant to rule 9.400(a), which provides:

Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include
(1)fees for filing and service of process;
(2)charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;
(3)bond premiums; and
(4)other costs permitted by ...

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