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Richards v. State

Supreme Court of Florida

January 16, 2020

RONALD J. RICHARDS, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fifth District - Case No. 5D17-2704 (Volusia County)

          James S. Purdy, Public Defender, and Matthew Funderbunk, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner

          Ashley Moody, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau Chief, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, Florida, for Respondent

          PER CURIAM.

         Ronald 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.

         For the reasons below, we quash Richards and approve Thomas and Chambers to the extent they are consistent with this opinion.

         Richards 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.

         In a 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.

         Because 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).

         Section 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 withheld.

         (Emphasis 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.

         The State maintains that the Fifth District's instructions were correct because section 938.27(1) places no limits on the timing ...


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