STATE v. HAYES (2021)

District Court of Appeal of Florida, Second District.

STATE of Florida, Appellant, v. Curtis HAYES, Appellee.

Case No. 2D20-678

Decided: May 05, 2021

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee.

The State of Florida appeals a downward departure sentence imposed on Curtis Hayes following his adjudication of guilt for a third-degree felony. We affirm the sentence but reverse the trial court's waiver of Hayes's obligation to pay the costs of prosecution.

When sentencing Hayes, the trial court waived several costs and fees, including the costs of prosecution. But section 938.27(1), Florida Statutes (2017), states that convicted persons are liable for costs of prosecution in all criminal cases. Subsection (2)(a) of the statute reinforces the mandatory nature of these costs, directing that “[t]he court shall impose the costs of prosecution and investigation notwithstanding the defendant's present ability to pay.” Consequently, the trial court had no discretion to waive this obligation.

Accordingly, we reverse Hayes's sentence to the extent it waived his liability for the costs of prosecution. On remand, the trial court shall impose a cost of prosecution of no less than $100 as required by section 938.27(8). We affirm the sentence in all other respects.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, Judge.

SILBERMAN and SMITH, JJ., Concur.

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