                 FIRST DISTRICT COURT OF APPEAL
                        STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1529
                  _____________________________

PAUL BYRD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Franklin County.
Terry P. Lewis, Judge.

                            June 7, 2019


PER CURIAM.

     We affirm the judgment and sentence and write to address (a)
Appellant’s claim that his motion for transfer to a pre-trial
treatment-based program should have been granted, and (b) errors
on the judgment and in the sentencing scoresheet.

     Appellant, who was diagnosed with a substance abuse
problem and had no prior criminal convictions, was charged with
three counts: trafficking in a controlled substance; possession of a
controlled substance; and possession of paraphernalia. He moved
to transfer his case to a pre-trial treatment-based program, but the
trial judge denied relief. A trial court’s decision to grant entry into
a pretrial treatment-based program is discretionary. See §
397.334(2), Fla. Stat. (2019) (A “court may order an individual to
enter into a pretrial treatment-based drug court program . . . .”)
(emphasis added).

    Appellant makes two arguments, first that he was eligible for
the pre-trial treatment-based program notwithstanding a local
administrative order to the contrary, and second that the trial
judge erred in denying his motion.

     As to the former, Appellant correctly points out that he is
eligible under the applicable statute, which states that “a person
who is charged with a nonviolent felony and is identified as having
a substance abuse problem” is “eligible for voluntary admission
into a pretrial substance abuse education and treatment
intervention program” upon motion of a party or the court.
§ 948.08(6)(a), Fla. Stat. (2019) (specifying two exceptions not
applicable here). For purposes of subsection (6)(a), the “term
‘nonviolent felony’ means a third degree felony violation of chapter
810 or any other felony offense that is not a forcible felony as defined
in s. 776.08.” Id. (emphasis added). Because the felony trafficking
charge against him is not a “forcible felony as defined in s. 776.08,”
the charge against him is considered a “nonviolent felony” for
purposes of the transfer statute.

    Despite his eligibility for a pre-trial treatment-based program,
the trial judge expressed hesitation in considering Appellant’s
request because an administrative order of the Second Judicial
Circuit provides that:

    2. Defendants whose offenses occurred on or after
    October 1, 1997, shall be eligible to participate in such
    program if they are charged with a second or third degree
    drug purchase/possession offense under Chapter 893 in
    accordance with the criteria of Section 948.08(6), Florida
    Statutes. Participants must not have any pending felony
    cases or be on active Department of Corrections
    supervision.

Admin. Order No. 1997-12 (Fla. 2d Cir. Ct. Oct. 7, 1997) (emphasis
added). Appellant was charged with a first degree felony (the
trafficking charge), which disqualified him under the
administrative order that allows participation for only those

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charged with a second or third degree offense. The administrative
order, however, conflicts with section 948.08(6)(a), Florida
Statutes, which extends eligibility to a “nonviolent felony,” whose
applicable statutory definition includes the charge against
Appellant. For that reason, Appellant is correct that his case was
eligible for possible transfer to the pre-trial treatment-based
program notwithstanding the administrative order. Cf. Gincley v.
State, No. 4D18-3067, 2019 WL 1371941 (Fla. 4th DCA Mar. 27,
2019) (quashing a circuit court administrative order that conflicted
with section 948.08(6)).

     Though Appellant was eligible under section 948.8(6), the
trial court’s denial of his motion was not an abuse of discretion.
Transfers to pre-trial treatment-based programs are discretionary,
not mandatory, placing the decision in the hands of trial judges
who are in the best position to assess whether defendants are
suited for available programs (which do not have unlimited
capacity). Here, Appellant did not file his motion seeking transfer
until shortly before trial, almost three years after the filing of
charges against him. The trial judge expressed that if he had the
ability to grant relief, he was disinclined to do so at such a late
stage of the case. Though there is no time restriction placed on
when a motion seeking transfer may be made, the lateness of
Appellant’s motion, on the eve of trial, provides a reasonable basis
for denying relief upon which the trial judge relied.

     Next, the trial court imposed a $65 cost pursuant to section
939.185, Florida Statutes, without including the local ordinance
authorizing the cost. Pursuant to Carter v. State, 173 So. 3d 1048,
1051 (Fla. 1st DCA 2015), we remand for the court to cite the
applicable ordinance. We also remand for the court to correct the
criminal punishment scoresheet, which incorrectly indicates that
Appellant entered a guilty plea. He was actually found guilty
following a jury trial.

     We AFFIRM the judgment and sentence but REMAND for the
court to make corrections to the judgment and to the sentencing
scoresheet.

MAKAR, OSTERHAUS, and BILBREY, JJ., concur.


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              _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
              _____________________________


Michael Ufferman, Michael         Ufferman   Law   Firm,   P.A.,
Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.




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