       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          WILFRED A. BROWN,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-3371

                             [July 29, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 06-
2009006254CF10A.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Wilfred Brown appeals his convictions for grand theft and fraudulent
security transaction. He argues that his convictions violate double
jeopardy, and that the trial court erred in imposing supplemental costs of
prosecution without holding a hearing. We hold that the convictions do
not violate double jeopardy, but he is entitled to a hearing on the
supplemental costs of prosecution.

   Appellant was charged with two counts: (1) grand theft, in violation of
sections 812.014(1)(a)-(b) and 812.014(2)(a)1., Florida Statutes (2007);
and (2) a fraudulent security transaction, in violation of sections 517.301
and 517.302, Florida Statutes (2007). The state alleged that the victim
gave the appellant $175,000 which appellant was to invest with a bank
which would manage the money. Instead, he used the victim’s money for
personal expenses. Appellant was found guilty after a trial and sentenced
on both charges. The trial court also imposed a judgment for costs of
prosecution.
   On appeal, appellant contends his convictions for both grand theft and
fraudulent security transaction violate double jeopardy. A double jeopardy
violation is fundamental error that can be raised for the first time on
appeal. Rimondi v. State, 89 So. 3d 1059, 1060 (Fla. 4th DCA 2012). In
the present case, the state has accepted the facts as explained by appellant
in his initial brief and does not raise any disputes of fact. “A double
jeopardy claim based upon undisputed facts presents a pure question of
law and is reviewed de novo.” Newton v. State, 31 So. 3d 892, 894 (Fla.
4th DCA 2010) (quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)).

    “The double jeopardy clauses of the United States and Florida
Constitutions . . . do not prohibit ‘multiple punishments for different
offenses arising out of the same criminal transaction as long as the
Legislature intends to authorize separate punishments.’” Rimondi, 89 So.
3d at 1061 (quoting Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009)).
Section 775.021(4), Florida Statutes (2007), which codifies the test
established in Blockburger v. United States, 284 U.S. 299 (1932), provides:

          (4)(a) Whoever, in the course of one criminal transaction or
      episode, commits an act or acts which constitute one or more
      separate criminal offenses, upon conviction and adjudication
      of guilt, shall be sentenced separately for each criminal
      offense; and the sentencing judge may order the sentences to
      be served concurrently or consecutively. For the purposes of
      this subsection, offenses are separate if each offense requires
      proof of an element that the other does not, without regard to
      the accusatory pleading or the proof adduced at trial.

          (b) The intent of the Legislature is to convict and sentence
      for each criminal offense committed in the course of one
      criminal episode or transaction and not to allow the principle
      of lenity . . . to determine legislative intent. Exceptions to this
      rule of construction are:

         1. Offenses which require identical elements of proof.
         2. Offenses which are degrees of the same offense as
      provided by statute.
         3. Offenses which are lesser offenses the statutory
      elements of which are subsumed by the greater offense.

§ 775.021(4)(a)-(b), Fla. Stat. (2007).

   Thus, “[i]f each offense ‘has an element that the other does not, the
court must then determine if one of the exceptions set forth in

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775.021(4)(b) applies.’” Juliao v. State, 149 So. 3d 1151, 1153 (Fla. 4th
DCA 2014) (quoting Ramirez v. State, 113 So. 3d 105, 107 (Fla. 5th DCA
2013)). In applying this test, courts examine the statutory elements of the
two offenses and do not consider “the actual evidence presented at trial or
the facts as alleged in a particular information.” Donovan v. State, 572 So.
2d 522, 526 (Fla. 5th DCA 1990); see also § 775.021(4)(a), Fla. Stat. (2007)
(“without regard to the accusatory pleading or the proof adduced at trial”);
Rimondi, 89 So. 3d at 1062 (“[T]he resolution of this case turns on a
comparison of the statutory elements . . . .”).

   At the time of appellant’s crime, the statutory elements of theft were:

         (1) A person commits theft if he or she knowingly obtains
      or uses, or endeavors to obtain or to use, the property of
      another with intent to, either temporarily or permanently:

         (a) Deprive the other person of a right to the property or a
      benefit from the property.

         (b) Appropriate the property to his or her own use or to the
      use of any person not entitled to the use of the property.

§ 812.014(1), Fla. Stat. (2007). If the property stolen is valued at $100,000
or more, the theft becomes first-degree grand theft, a first-degree felony. §
812.014(2)(a)1., Fla. Stat. (2007).

   At the time of appellant’s crime, the statutory elements of a fraudulent
security transaction under section 517.301(1)(a), Florida Statutes (2007),
on which appellant was tried, were:

         (1) It is unlawful and a violation of the provisions of this
      chapter for a person:

         (a) In connection with the rendering of any investment
      advice or in connection with the offer, sale, or purchase of any
      investment or security . . . directly or indirectly:

         1. To employ any device, scheme, or artifice to defraud;

          2. To obtain money or property by means of any untrue
      statement of a material fact or any omission to state a material
      fact necessary in order to make the statements made, in the
      light of the circumstances under which they were made, not
      misleading; or

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        3. To engage in any transaction, practice, or course of
      business which operates or would operate as a fraud or deceit
      upon a person.

    Applying the test of section 775.021(4)(a), Florida Statutes (2007), to
these elements, “each offense requires proof of an element that the other
does not[.]”    A fraudulent security transaction requires proof of a
connection with the rendering of investment advice or with the offer, sale
or purchase of an investment. See § 517.301(1)(a), Fla. Stat. (2007). This
is not required of grand theft. First-degree grand theft requires proof that
the stolen property is worth at least $100,000, which is not an element of
fraudulent security transaction. See § 812.014(2)(a)1., Fla. Stat. (2007).

   Appellant argues that we should consider the two statutes as “degree
variants” of the same offense pursuant to section 775.021(4)(b)2., Florida
Statutes (2007). He relies on Thompson v. State, 585 So. 2d 492 (Fla. 5th
DCA 1991), approved and adopted by State v. Thompson, 607 So. 2d 422
(Fla. 1992), in which the supreme court approved the Fifth District’s
opinion that a conviction under the general theft statute, Chapter 812,
and a conviction under the Anti-Fencing Statute, Chapter 817, violated
double jeopardy, because Chapter 817 was a different degree or variant of
the general theft statute, Chapter 812. Thompson appears limited to these
specific statutes, because in Valdes v. State, 3 So. 3d 1067 (Fla. 2009), the
court held:

      [W]e conclude, as Justice Cantero did in his special
      concurrence in [State v.] Paul, [934 So. 2d 1167 (Fla. 2006),]
      that the plain meaning of the language of subsection (4)(b)(2),
      providing an exception for dual convictions for “[o]ffenses
      which are degrees of the same offense as provided by statute,”
      is that “[t]he Legislature intends to disallow separate
      punishments for crimes arising from the same criminal
      transaction only when the statute itself provides for an offense
      with multiple degrees.” . . .

Id. at 1076. Because appellant was charged and convicted under two
separate statutes, the degree variant exception does not apply.

   As to the cost award, we reverse. We agree with appellant’s arguments
that the cost award for prosecution witness travel costs violated his due
process rights, because the court did not provide him an opportunity to be
heard and the state did not prove the amount of the costs. It is undisputed
that the court never held a separate hearing on the issue of prosecution

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costs, and the state did not provide notice prior to the sentencing hearing
of the costs it sought to assess. A defendant must receive notice before
the sentencing hearing, so that defense counsel can prepare any
challenges to the evidence the state plans to offer in support. See Davis v.
State, 677 So. 2d 1366, 1367 (Fla. 4th DCA 1996) (“The record does not
demonstrate that there was notice before the sentencing hearing of the
state’s intent to seek $50 costs of prosecution pursuant to section 939.01,
Florida Statutes (1995).”) (emphasis added). Moreover, the state failed to
provide competent substantial evidence of these costs. Although the state
attached a “costs compilation” invoice to its motion for costs of prosecution
and proffered testimony from one of its employees, the document never
was admitted into evidence and the testimony never was taken. We
therefore reverse for a new hearing on costs.

   Affirmed as to convictions; reversed as to cost judgment.

GROSS and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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