         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT



KELLY MATHIS,

              Appellant,

 v.                                                           Case No. 5D14-492

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed January 19, 2018

Appeal from the Circuit Court
for Seminole County,
Melanie F. Chase, Judge.

Kelly Mathis, of Law Offices of Kelly B.
Mathis, Jacksonville, pro se.

Arthur I. Jacobs, of Jacobs Scholz &
Associates, LLC, Fernandina Beach,
Amicus Curiae for the Florida Prosecuting
Attorneys Association.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Diana K. Bock, Assistant
Attorney General, Tampa, for Appellee.


                                ON MOTION FOR REVIEW

WALLIS, J.

       Kelly Mathis moves this court to review the denial of his motion for costs, pursuant

to Florida Rule of Appellate Procedure 9.400(a). Because Mathis prevailed on appeal and

the State decided not to pursue further prosecution, we find that Mathis is entitled to costs
pursuant to section 939.06, Florida Statutes (2016), and rule 9.400(a). We grant Mathis's

motion, reverse the trial court's order denying costs, and remand with instructions to the

trial court to, nunc pro tunc, tax costs pursuant to rule 9.400(a), plus prejudgment interest

from the date of our mandate.

       In October 2016, this court reversed Mathis's multiple convictions and remanded

for a new trial. Mathis v. State, 208 So. 3d 158 (Fla. 5th DCA 2016). In December 2016,

we denied the State's motion for rehearing. The State then pursued discretionary review

in the Florida Supreme Court, and this court stayed its mandate pending the outcome. In

January 2017, Mathis moved for appellate costs pursuant to rule 9.400(a). In February,

the Florida Supreme Court denied the petition for review. This court then issued its

mandate. In March, the State entered a nolle prosequi on all charges.

       Subsequently, the trial court held a hearing on the motion for costs and found that

Mathis was not entitled to appellate costs because he must have a statutory right to

recover costs in order to claim them. The trial court noted that section 939.06, Florida

Statutes, "authorizes the imposition of certain trial court costs against the county in favor

of an acquitted or discharged defendant, but [Mathis] is not seeking costs under that

provision." The trial court further found that Mathis failed to establish an entitlement to

costs under rule 9.400. This motion for review followed.

       We review a trial court's decision on appellate costs "only to determine whether

the trial court applied the correct law and whether it abused its discretion." Fla. Power &

Light Co. v. Polackwich, 705 So. 2d 23, 25 (Fla. 2d DCA 1997). The prevailing party on

appeal may move for appellate costs pursuant to rule 9.400(a), which provides:

              Costs shall be taxed in favor of the prevailing party unless the
              court orders otherwise. Taxable costs shall include



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              (1) fees for filing and service of process;

              (2) charges for preparation of the record and any hearing or
              trial transcripts necessary to determine the proceeding;

              (3) bond premiums; and

              (4) other costs permitted by law.

(emphasis added). Unlike appellate fees, appellate costs must be awarded to the

prevailing party. See Perez v. Fay, 198 So. 3d 681, 683 (Fla. 2d DCA 2015) ("The circuit

court does not have discretion to refuse to award appellate costs when the appellate court

has not ordered that costs be denied, although the circuit court is charged with

determining which party prevailed and does have discretion in determining the amount to

be allowed based on the evidence in the record."); C.f. United Servs. Auto. Ass'n v.

Phillips, 775 So. 2d 921, 922 (Fla. 2000) ("It is simply insufficient for parties to only refer

to rule 9.400 or to rely on another court's order in support of a motion for attorney's fees

for services rendered in an appellate court.").1

       The Florida Supreme Court has stated, "[C]ost provisions against the State must

be expressly authorized." Bd. of Cty. Comm'rs, Pinellas Cty. v. Sawyer, 620 So. 2d 757,

758 (Fla. 1993). Article 1, section 19, of the Florida Constitution provides, "No person

charged with crime shall be compelled to pay costs before a judgment of conviction has

become final." Further, section 939.06, Florida Statutes, provides:

              A defendant in a criminal prosecution who is acquitted or
              discharged is not liable for any costs or fees of the court or

       1The language differences between sections (a) and (b) supports this conclusion.
Section (a) states, "Costs shall be taxed in favor of the prevailing party unless the court
orders otherwise." Fla. R. App. P. 9.400 (a). In contrast, section (b) states, "[A] motion for
attorneys' fees shall state the grounds on which recovery is sought." Fla. R. App. P. 9.400
(b).



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              any ministerial office, or for any charge of subsistence while
              detained in custody. If the defendant has paid any taxable
              costs, or fees required under s. 27.52(1)(b), in the case, the
              clerk or judge shall give him or her a certificate of the payment
              of such costs, with the items thereof, which, when audited and
              approved according to law, shall be refunded to the
              defendant.

Thus, article 1, section 19, and section 939.06 authorize the taxing of costs against the

State for an acquitted or discharged defendant.

       Section 939.06 applies to Mathis because the State entered a nolle prosequi. See

Haines v. State, 80 So. 3d 1144, 1145 (Fla. 4th DCA 2012) ("A nolle prosequi by the state

amounts to a 'discharge' entitling a defendant to a refund of costs under the statute.").

Additionally, this court has previously extended section 939.06 to appellate costs. See

Evans v. State, 608 So. 2d 944 (Fla. 5th DCA 1992). Mathis's failure to refer to section

939.06 as a substantive basis is not fatal to his claim for costs because rule 9.400(a) does

not expressly require that a movant for costs state the ground of recovery. Because

Mathis prevailed on appeal and the State's nolle prosequi discharged his case, Mathis is

entitled to costs pursuant to section 939.06 and rule 9.400(a). Accordingly, we grant his

motion for review, reverse the trial court's order denying his motion for costs, and remand

with instructions to enter an order, nunc pro tunc, taxing costs pursuant to rule 9.400(a),

plus the appropriate interest from the date of our mandate.



       MOTION GRANTED; REVERSED and REMANDED with Instructions.


ORFINGER and EDWARDS, JJ., concur.




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