       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             DALE L. ALLEN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-2084

                             [August 12, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 09007998
CF10A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Dale Allen (“Defendant”) argues that the court’s imposition of a
statutory fee was inappropriate because he was acquitted of the charge
related to the fee, and there were no crime laboratory costs associated
with the two charges for which he was convicted. Further, he asserts
that no agency requested reimbursement for their investigative fees as
required by the statute. For the reasons set forth below, we agree with
Defendant and reverse the portion of his sentence imposing the $554.59
fee.

    Defendant was charged with possession of a firearm by a convicted
felon, resisting officers with violence, and giving a false name to law
enforcement officers. The jury returned a verdict of not guilty on the
firearm charge, guilty of the lesser-included offense of resisting an officer
without violence, and guilty of giving a false name to a law enforcement
officer. After accepting Defendant’s plea to another case and sentencing
him to 180 days in jail, the trial court adjudicated him guilty on the
counts for which he was convicted and sentenced him to a concurrent
180 days in jail. The trial court also entered an order assessing a
$554.59 investigative fee pursuant to section 938.27 of the Florida
Statutes.

   Section 938.27(1) states:

      In all criminal and violation-of-probation or community-
      control cases, convicted persons are liable for payment of the
      costs of prosecution, including 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. The court shall include these costs in every
      judgment rendered against the convicted person. For
      purposes of this section, ‘convicted’ means 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.

§ 938.27(1), Fla. Stat. (2009) (emphasis added).

    Defendant’s motion to correct the sentence, filed under Florida Rule of
Criminal Procedure 3.800(b)(2), requested “an order striking the
investigative costs for crime laboratory analysis, or, if appropriate, a
certificate of the payment of the $554.59 he may have paid” to the clerk’s
office. The trial court entered no ruling on his motion, and it was
deemed denied. See Felton v. State, 939 So. 2d 1159, 1159 (Fla. 4th DCA
2006).

   The State argues that Defendant may not appeal the imposition of the
fee in this case because he raised no objection to the oral
pronouncement imposing the fee, and because the imposition of the fee
was apparently part of the plea agreement. We disagree with both
arguments.

   First, despite the State’s assertions, it is well-settled that a defendant
may raise unpreserved sentencing errors under a rule 3.800(b)(2) motion.
See Jackson v. State, 983 So. 2d 562, 568-69 (Fla. 2008). The type of
error present here is contemplated in a rule 3.800(b)(2) motion. Id. at
572 (stating that a “trial court improperly assess[ing] costs” is a
sentencing error that is “subject to” rule 3.800(b)(2)); see also Felton, 939
So. 2d at 1159 (granting defendant’s rule 3.800(b)(2) motion and


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reversing the trial court’s imposition of “prosecution and investigative
costs”).

   In Felton, the defendant was sentenced after entering a no contest
plea, and the trial court imposed “prosecution and investigative costs”
pursuant to section 938.27. 939 So. 2d at 1159. The defendant filed a
timely rule 3.800(b)(2) motion to correct sentencing errors, and this court
found that the imposition of such costs was in error because the agency
requesting the costs failed to specifically request reimbursement and
provided no documentation to the court. Id. In light of both Jackson
and Felton, it is clear that Defendant properly preserved the issue
regarding the trial court’s imposition of the investigative fee by filing a
timely rule 3.800(b)(2) motion.

   Second, despite the State’s assertions, it is not clear from the record
that the firearm fee was agreed to as part of the plea negotiations.
Defense counsel never indicated this firearm fee was part of the plea
agreement, and only stated to the court that “we’ve discussed it.” See
Sitek v. State, 700 So. 2d 119, 120 (Fla. 2d DCA 1997) (finding the
imposition of a laboratory fee “must be affirmed because the [defendant]
agreed to pay it in [a] written plea agreement”). The State contends it
may be assumed that the fee was part of the plea agreement by
acquiescence due to defense counsel’s statement.             However, the
response, “we’ve discussed it,” without more, is not indicative of an
express agreement. Further, a review of the record reflects that the fee
was not included as part of Defendant’s written plea agreement.

   “While ‘the trial court has broad discretion to determine the amount
and type of costs of prosecution to be assessed against a convicted
person,’ the design of [section 938.27] is ‘to compensate the state for the
expenses of prosecution associated with individual violations.’” Leyritz v.
State, 93 So. 3d 1156, 1158 (Fla. 4th DCA 2012) (quoting Davis v. State,
42 So. 3d 807, 809-10 (Fla. 1st DCA 2010)) (finding that when defendant
was acquitted of a felony charge and convicted of a lesser-included
misdemeanor, the trial court could impose costs for only the
misdemeanor conviction). As such, a defendant who is acquitted or
discharged of a crime is not liable for any of the costs or fees associated
with that crime, absent an express agreement.

   Based on the foregoing, we reverse the $554.59 fee imposed by the
court at sentencing. Since Defendant was found not guilty of the
possession of a firearm charge, and no agency requested the fee or
provided documentation to the court, see Felton, 939 So. 2d at 1159,


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assessing the fee pursuant to section 938.27 was improper. We affirm
on all other issues raised by Defendant in this appeal.

  Affirmed in part; Reversed in part.

TAYLOR and MAY, JJ., concur.

                           *        *     *

  Not final until disposition of timely filed motion for rehearing.




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