JOSEPH NELSON WEST
v.
STATE OF FLORIDA
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A trial court may not impose a battery surcharge exceeding the amount mandated by statute without making the findings required to impose an optional fine under the applicable statute.
[1] A trial court's imposition of a surcharge must be supported by statutory authority.
[2] A domestic violence-related surcharge under § 938.08, Florida Statutes, is a specific amount mandated by statute.
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Join FLexlaw to unlock all legal intelligenceJoseph Nelson West was convicted of breaking into the home of his child's mother and committing battery. The trial court imposed a $352 battery surcha…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
No. 1D16-5379 _____________________________
JOSEPH NELSON WEST,
Appellant,
v. STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Suwanee County. David W. Fina, Judge.
June 20, 2018 PER CURIAM.
Joseph Nelson West appeals his conviction for burglary of a dwelling with a battery, alleging that the trial court improperly denied his challenges to strike jurors for cause, and assessed an erroneous $352 battery surcharge against him at sentencing. We affirm without comment, except with respect to the fee.
Mr. West was convicted of breaking into the home of the mother of his child and committing battery. With convictions of this type, § 938.08, Florida Statutes, requires the imposition of a $201 domestic violence-related surcharge. Here, the trial court assessed a $352 surcharge. But no authority exists to support the additional $151 surcharge amount imposed by the court.
2
The State argues that the additional $151 amount is supported by § 775.0835(1), which allows the trial court to levy an optional fine for causing injury to another person. But the trial court did not purport to fine Mr. West, but only to impose the battery surcharge. Furthermore, the court didn’t make the findings necessary to impose such a fine. Before imposing a fine under § 775.0835(1), a court must find “that the defendant has the present ability to pay the fine and finds that the impact of the fine . . . will not cause [the defendant’s] dependents to be dependent on public welfare.” Id. The trial court did not make these findings. See Houle v. State, 33 So. 3d 822, 823 (Fla. 4th DCA 2010) (striking fines imposed under § 775.0835 due to the absence of required findings). We thus remand with directions to strike $151 from the battery surcharge amount, leaving only the $201 amount authorized by § 938.08.
AFFIRMED in part, REVERSED in part, and REMANDED with directions.
WOLF, OSTERHAUS, and WINSOR, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
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Authorities Cited
- Lesane v. State, 33 So. 3d 822 (Fla. 4th DCA 2010)
- Houle v. State, 33 So. 3d 822 (Fla. 4th DCA 2010)