RONALD J. RICHARDS, Petitioner,
STATE OF FLORIDA, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Application for Review of the Decision of the District Court
of Appeal - Direct Conflict of Decisions Fifth District -
Case No. 5D17-2704 (Volusia County)
S. Purdy, Public Defender, and Matthew Funderbunk, Assistant
Public Defender, Seventh Judicial Circuit, Daytona Beach,
Florida, for Petitioner
Moody, Attorney General, Tallahassee, Florida, Wesley Heidt,
Bureau Chief, and L. Charlene Matthews, Assistant Attorney
General, Daytona Beach, Florida, for Respondent
J. Richards seeks review of the decision of the Fifth
District Court of Appeal in Richards v. State, 258
So.3d 576 (Fla. 5th DCA 2018). We exercised our jurisdiction
on the grounds that Richards expressly and directly
conflicts with the First District Court of Appeal's
decision in Thomas v. State, 236 So.3d 1159 (Fla.
1st DCA 2018), and the Fourth District Court of Appeal's
decision in Chambers v. State, 217 So.3d 210 (Fla.
4th DCA 2017), on the issue of whether the State, on remand,
can request investigative costs pursuant to section
938.27(1), Florida Statutes (2019). We have jurisdiction.
See art. V, § 3(b)(3), Fla. Const.
reasons below, we quash Richards and approve
Thomas and Chambers to the extent they are
consistent with this opinion.
pleaded nolo contendere to one count of grand theft. The
trial court accepted Richards' plea and entered a
judgment ordering him, among other things, to pay $150 in
investigative costs to the Daytona Beach Shores Police
Department. At no point before the trial court entered the
judgment did the State request that investigative costs be
imposed on Richards. Following the judgment, Richards moved
to correct his sentence, arguing that the trial court could
not impose investigative costs because the State had not
requested them, as required by section 938.27(1). The trial
court denied his motion, and Richards appealed.
brief opinion, the Fifth District reversed the trial
court's decision. Richards, 258 So.3d at 576.
The Fifth District agreed with Richards and held "that
the trial court erred in imposing costs of investigation in
the absence of a request from the State or any evidence from
the investigating agency." Id. The Fifth
District remanded the case "for the trial court to
strike these costs from the judgment" but concluded
"that the State should be given the opportunity to
request the imposition of investigative costs."
Id. Richards seeks review of the Fifth
District's instruction on remand.
the issue in this case ultimately turns on the interpretation
of a statute, we review it de novo. City of Parker v.
State, 992 So.2d 171, 175-76 (Fla. 2008).
938.27(1) requires that the State request investigative costs
before a trial court can impose them:
In all criminal and violation-of-probation or
community-control cases, convicted persons are liable for
payment of the costs of prosecution, including investigative
costs incurred by law enforcement agencies, . . . if
requested by such agencies. The court shall include
these costs in every judgment rendered against the convicted
person. For purposes of this section, "convicted"
means a determination of guilt, or of violation of probation
or community control, which is a result of a plea, trial, or
violation proceeding, regardless of whether adjudication is
added.) Richards suggests that the State had ample
opportunity during the trial court proceedings to request
investigative costs and should not now get a do-over. We
agree. Generally, a party does not get the proverbial
"second bite at the apple" when it fails to satisfy
a legal obligation the first time around. See Jackson v.
State, 983 So.2d 562, 573 (Fla. 2008) ("[Rule
3.800(b)] was not intended to give a defendant a 'second
bite at the apple' to contest evidentiary rulings made at
sentencing to which the defendant could have objected but
chose not to do so." (quoting Griffin v. State,
946 So.2d 610, 613 (Fla. 2d DCA 2007))); Boatman v.
State, 39 So.3d 391, 395 (Fla. 1st DCA 2010) ("The
purpose of the thirty-day deadline is to minimize pretrial
detention by requiring commitment trials to be held promptly,
not to give [the State] a proverbial 'second bite at the
apple.' "); State v. Justo, 555 So.2d 893,
895 (Fla. 3d DCA 1990) (Schwartz, J., dissenting)
("[T]his is unfairly contrary to the most basic rule of
appellate review, which requires the preservation of and
insistence upon error below and which indeed exists
specifically to preclude any such second bite at the legal
apple . . . ."). In this case, the State had the
opportunity to request these costs during the trial court
proceedings but chose not to. This was the State's first
bite, as nothing in those proceedings prevented the State
from making the request. On appeal, the Fifth District
acknowledged the State's failure to request these costs
but nonetheless afforded it another opportunity to request
these costs on remand. See Richards, 258 So.3d at
576. By doing so, the Fifth District granted the State the
forbidden second bite at satisfying the statute's
requirements. On this basis, we conclude that the Fifth
District's instructions were erroneous.
State maintains that the Fifth District's instructions
were correct because section 938.27(1) places no limits on
the timing ...