Costs of Prosecution

Did you know that if the Office of the State Attorney incurs investigative costs, then the prosecutor can request that those costs be paid by the defendant, as “costs of prosecution”?

The term “state attorney’s fees” is not included in the term “costs of prosecution” as defined by Section 938.27, F.S. See Weeks v. State, 659 So.2d 695 (Fla. 4th DCA 1995), rev. den., 666 So. 2d 145 (Fla. 1995); Mickler v. State, 682 So.2d 607 (Fla. 2d DCA, 1996).

When the defendant is “convicted” of a crime, the court imposes court costs, even in a violation of probation (VOP) case or violation of community control (VOCC) case. The term “court costs” includes costs for the state attorney and costs of prosecution.

Under Section 985.032, F.S., costs of prosecution are assessed as provided in s. 938.27, F.S., for any juvenile who has had adjudication of delinquency withheld or who has been adjudicated delinquent.

If the defendant agrees to pay these statutory costs as part of a plea agreement, the court is still required to impose the costs as the statutory procedures require. Tolbert v. State, 698 So.2d 1288 (1997). In fact, Section 938.27(1), F.S., requires a law enforcement agency or other listed agency to request the payment of investigative costs and provide supporting documentation.

Under Section 938.27(1), F.S., the term “costs of prosecution” might include the investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies.

Section 938.27(8), F.S., provides that costs for the State Attorney’s Office must be set in all cases at no less than $50 per case for a misdemeanor or criminal traffic offense and no less than $100 per case for a felony offense.

The costs are also assessable in a proceeding in which the underlying offense is a violation of probation or community control. The court may set a higher amount upon a showing of sufficient proof of higher costs incurred.

For purposes of determining when costs are imposed, the word convicted is defined under Section 938.27(1), (8), F.S., to mean 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.

Hearings on the Cost of Prosecution

What happens when the defendant disputes the proper amount or type of costs? That dispute over the costs to be imposed is resolved by the court using the preponderance of the evidence standard.

At a hearing on the issue of costs, the burden of demonstrating the amount of costs incurred is on the prosecutor with the State Attorney’s Office. On the other hand, the burden is on the defendant to demonstrate his or her financial resources and financial needs.

The money recovered on behalf of the state attorney must be deposited into the State Attorneys Revenue Trust Fund. The funds must be used during the fiscal year in which the funds are collected or in any subsequent fiscal year. The funds must be used for actual expenses incurred in investigating and prosecuting criminal cases, which may include the salaries of permanent employees, or for any other purpose authorized by the Florida Legislature.

Using Cost of Prosecution During Plea Negotiations

According to a BILL ANALYSIS AND FISCAL IMPACT STATEMENT for 2020 CS/SB 846 prepared by the Professional Staff of the Appropriations Subcommittee on Criminal and Civil Justice at the Florida Senate, Section 938.27, F.S., did not originally prohibit the state attorney and the defense counsel from presenting a negotiated plea agreement to the court containing costs for the state attorney in amounts greater than the current minimum.

As a result, the prosecutor and criminal defense attorneys sometimes use excessive costs as a bargaining chip during plea negotiations. 2020 CS/SB 846 was introduced by the Criminal Justice Committee and Senator Simmons on January 27, 2020, to discourage that practice. On March 14, 2020, however, the bill died in the Appropriations Subcommittee on Criminal and Civil Justice.

This article was last updated on Thursday, July 23, 2020.