MITCHELL v. STATE (2007)

Shane Mitchell appeals the judgment and sentence imposed following the return of the jury verdict finding him guilty of four counts of the lesser included offense of battery, one count of the lesser included offense of felony battery, and one count of false imprisonment.   He argues that:  (1) the trial court erred in instructing the jury on the four lesser included battery offenses;  (2) the trial court erred in assessing restitution for the speculative losses of unearned and undeterminable tips and bonuses;  and (3) the trial court erred in denying, in part, his motion to correct a sentencing error.   We affirm as to the first two issues.

Regarding the third issue, we agree with Mitchell that the trial court erred in failing to delete Special Condition F of Mitchell's probation, which delegated to the probation officer the authority to order alcohol and drug testing in order for the probation officer to determine whether any substance abuse treatment was necessary.   We also agree that because section 939.185(1)(a), Florida Statutes, was not in effect at the time Mitchell committed his offenses, the amount of $65.00, which was imposed as an additional court facility fee, must be stricken.   See Griffin v. State, 946 So.2d 610 (Fla. 2d DCA 2007).   We therefore strike Special Condition F and the $65.00 fee.   In all other respects, we affirm the judgment of conviction and sentence imposed on Mitchell.

AFFIRMED in part;  REVERSED in part.

PER CURIAM.

PLEUS, C.J., SAWAYA and EVANDER, JJ., concur.