JAMES EDWARD BRADLEY v. STATE OF FLORIDA (2023)

The appellant appeals his judgments and sentences for sexual battery on a child by a person in familial or custodial authority and lewd or lascivious molestation. He argues the trial court erred by: (1) denying his right to a twelve-person jury; (2) denying his motion for judgment of acquittal; (3) imposing cost of prosecution above the minimum statutory amount; and (4) imposing cost of investigation when there was no proof the State or law enforcement agency requested it.

We affirm on issue 1 without further discussion, relying on our opinion in Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022). We also affirm on issue 2 without further discussion.

The State properly concedes error on issues 3 and 4. See Elliot v. State, 344 So. 3d 41, 42 (Fla. 4th DCA 2022); Desrosiers v. State, 286 So. 3d 297, 300 (Fla. 4th DCA 2019). The State also concedes that the cost of investigation must be stricken, with no opportunity for the State to seek the cost on remand. Desrosiers, 286 So. 3d at 300 (“If these costs are not requested by the State, they must be stricken and cannot be imposed on remand.”). However, as the State argues, we have “consistently ․ chosen to remand unsupported costs assessments and provide the State with another opportunity to show ‘sufficient proof of higher [prosecution] costs incurred.’ ” Bartolone v. State, 327 So. 3d 331, 336 (Fla. 4th DCA 2021) (alteration in original) (internal quotation marks omitted); see also Guadagno v. State, 291 So. 3d 962, 963 (Fla. 4th DCA 2020). Thus, we permit the same opportunity on remand here.

For the foregoing reasons, we affirm two of the appellant's arguments on appeal and reverse the imposition of the $200 cost of prosecution and $50 cost of investigation. We remand for the trial court to strike the $50 cost of investigation, see Desrosiers, 286 So. 3d at 300, but permit the State on remand to provide proof for a higher-than-minimum cost of prosecution, see Bartolone, 327 So. 3d at 336. If the State fails to provide the necessary proof for the imposition of a higher cost of prosecution, then the minimum cost shall be imposed.

Affirmed in part, reversed in part, and remanded with instructions.

CONNER, J.

MAY and CIKLIN, JJ., concur.