       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          KENNY FABRA AYOS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                     Nos. 4D17-3840 and 4D17-3857

                              [June 19, 2019]

   Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Thomas M. Lynch V, Judge; L.T. Case Nos. 16-
3306CF10A and 16-5007CF10A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

             ON APPELLANT’S MOTION FOR REHEARING,
            REHEARING EN BANC, AND/OR CLARIFICATION

GERBER, C.J.

   We grant appellant’s motion for rehearing and clarification, and deny
appellant’s motion for rehearing en banc. We substitute the following
opinion for the opinion which we issued on March 20, 2019.

   The defendant appeals from his conviction and sentence following his
no contest plea to crimes of a sexual and non-sexual nature committed
against a former romantic partner. The defendant raises three properly
preserved arguments: (1) his scoresheet should not have included 160
sexual penetration points, because he pled to an information which
charged “union or penetration” in the alternative, and at no time during
the plea did he admit that penetration occurred; (2) if defense counsel, by
stipulating to a factual basis at the time of the plea, implicitly stipulated
to a penetration finding, then such stipulation was insufficient to waive
the defendant’s right to a jury determination of penetration; and (3) the
trial court erred in denying the defendant’s Florida Rule of Criminal
Procedure 3.800(b)(2) motion, which challenged the legality of various
costs. On the first two arguments, we affirm. On the third argument, we
agree that all but one of the challenged costs require reversal and
correction of the judgment.

   We will begin by addressing the first two arguments on the penetration
issue, before addressing the third argument on the costs issue.

                         The Penetration Issue

    As stated above, defense counsel stipulated to a factual basis at the
time of the plea, thereby implicitly stipulating to a penetration finding,
which was reflected in the scoresheet’s inclusion of 160 sexual penetration
points. At no point during the plea colloquy, or the sentencing hearing
which immediately followed, did the defendant object to his scoresheet’s
inclusion of 160 sexual penetration points, in contrast to the information
which charged “union or penetration” in the alternative. Further, during
the sentencing hearing, the victim testified on direct examination, without
objection, that the defendant put his penis in her vagina, and that the
defendant put his tongue in her vagina, without her consent in either
instance.    Defense counsel’s cross-examination of the victim also
acknowledged that one count was for “the penis and vagina penetration”
and the other count was for “[the defendant’s] mouth to [the victim’s]
vagina.” At no point did defense counsel challenge the victim on any
alleged lack of penetration in either instance. Instead, defense counsel’s
main argument sought a downward departure or other mitigation because
the defendant thought the sexual encounter was consensual.

    Dames v. State, 186 So. 3d 593 (Fla. 4th DCA 2016), although factually
distinguishable, is illustrative here. In Dames, the state charged the
defendant with lewd or lascivious battery and child abuse. Id. at 594.
Pursuant to a plea bargain, which greatly benefitted the defendant, the
state dropped the lewd and lascivious battery charge. Id. In exchange,
the defendant pled guilty to child abuse. Id. The defendant also
acknowledged that he was originally charged with lewd or lascivious
battery and that he scored beyond the statutory maximum for child abuse.
Id.

   During the plea colloquy, the trial court explained that a child abuse
charge, involving a sexual penetration allegation, carried a sixty-six month
prison sentence. Id. at 594-95. Although the defendant never expressly
admitted any facts, he never contradicted the trial court’s references to


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sexual penetration. Id. Moreover, the defendant did not object to his
scoresheet, which included victim injury points for penetration. Id.

   Later, the defendant violated probation and was sentenced based upon
the original scoresheet, which included the penetration points. Id. at 595.
On appeal, the defendant argued that the trial court erred in assessing
penetration points because he never admitted penetration during his
guilty plea and penetration was not an element of child abuse, the charge
to which he pled. Id.

      We concluded the defendant’s argument lacked merit, reasoning:

           [A]t the initial sentencing hearing, [the defendant], through
        counsel, stated he had no objection or correction to the
        criminal punishment code scoresheet that scored eighty
        points for penetration and reflected a minimum sentence of
        66.9 months.

            The trial court referred to [the defendant’s] crime as “the
        charge of child abuse when there’s sexual penetration.” At the
        plea colloquy that followed, [the defendant] acknowledged that
        he understood that the bottom of the sentencing guidelines
        called for him to go to prison for over five years. At the time
        of accepting the State’s generous plea bargain, [the defendant]
        was not left with the false impression that the maximum
        sentence he could receive was five years’ imprisonment. In
        fact, the record demonstrates that [the defendant]
        affirmatively agreed to the inclusion of penetration points on
        the scoresheet and that this enhancement was part of the
        bargain that allowed him to plea down to the child abuse
        charge, albeit with sex offender probation conditions which
        [the defendant] proceeded to violate.

Id.

   Dames differs from the instant case insofar as Dames involved a
beneficial plea bargain, whereas the instant case involved an open plea
seeking a downward departure. Nevertheless, the plea colloquy and
sentencing hearing in both cases were markedly similar. Here, both
parties stipulated to a factual basis for the crimes, and neither party
objected when the circuit court found a factual basis based upon its
independent review of the probable cause affidavits and arrest reports.
The defendant also did not object to the scoresheet’s penetration points
assessment. Further, the record reflected repeated, and undisputed,

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references to penetration. The victim testified at the sentencing hearing
that the defendant penetrated her with his penis and tongue. Defense
counsel’s cross-examination of the victim did not dispute the penetration
allegation. On the contrary, defense counsel’s questions presupposed that
penetration occurred. Finally, the defendant did not dispute any aspect of
the victim’s testimony. Rather, the defendant’s primary argument was
that the sexual contact was consensual.

   At worst, if any error occurred, the error was harmless. To support the
harmless error argument, the state relies on Galindez v. State, 955 So. 2d
517 (Fla. 2007). Although Galindez is not on point procedurally, its
reasoning to support a harmless error conclusion is persuasive. To explain
Galindez’s persuasiveness, we will examine the case in greater detail.

    In Galindez, the defendant was convicted of two counts of lewd and
lascivious assault on a minor and one count of child abuse by
impregnating the victim. Id. at 519-20. The trial court ultimately
sentenced the defendant using a scoresheet reflecting the trial court’s
determination that eighty victim injury points should be assessed for
penetration. Id. at 520. After the defendant was sentenced, the United
States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), which held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Galindez, 955 So. 2d at 519. Relying on Apprendi, the defendant
filed a Florida Rule of Criminal Procedure 3.800(b) motion, arguing that
the trial court’s assessment of eighty victim injury points was improper on
a count alleging that the defendant “plac[ed] his penis in union with . . .
and/or penetrat[ed] the vagina of [the victim] with his penis.” Id. at 523
(emphasis added). According to the defendant, because the count was
pled in the alternative, and because the jury did not specifically find that
penetration occurred, the trial court could assess only forty victim injury
points. Id.

   The Florida Supreme Court upheld the defendant’s sentence,
reasoning:

      [A]ssuming Apprendi applies to [the defendant’s] []sentencing,
      for purposes of our harmless error analysis the issue is
      whether the failure to have the jury make the victim injury
      finding . . . contributed to the conviction or sentence – in other
      words, whether the record demonstrates beyond a reasonable
      doubt that a rational jury would have found penetration.


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      At trial the young victim, then pregnant by [the defendant],
      testified that she and [the defendant] engaged in sexual
      intercourse on multiple occasions over a period of several
      months. [The defendant’s] confession confirming these facts,
      including his admission that they repeatedly had sexual
      intercourse, was admitted at trial. Finally, [the defendant’s]
      defense at trial was that the twelve-year-old victim consented.
      Thus, [the defendant] did not dispute the facts of the sexual
      relationship at trial, and he did not contest them at
      resentencing, either.

      In light of the clear and uncontested record evidence of
      penetration . . . we hold that no reasonable jury would have
      returned a verdict finding there was no penetration.
      Accordingly, we find the error in this case harmless beyond a
      reasonable doubt.

Id. at 523-24 (internal citations omitted).

   As mentioned above, Galindez is not on point procedurally with this
case because the defendant in Galindez had a jury trial, whereas here no
jury trial occurred because the defendant pled no contest. Thus, the
harmless error test applied in Galindez – whether a reasonable jury would
have returned a verdict finding no penetration in light of the clear and
uncontested record evidence of penetration – is inapplicable to this case.

   Instead, the harmless error test we would apply here is whether the
record demonstrates beyond a reasonable doubt that penetration
occurred. We conclude the record can support such a finding because, as
stated above, during the sentencing hearing, the victim testified on direct
examination, without objection, that the defendant put his penis in her
vagina and his tongue in her vagina without her consent. Defense
counsel’s cross-examination of the victim also acknowledged that one
count was for “the penis and vagina penetration” and the other count was
for “[the defendant’s] mouth to [the victim’s] vagina.” At no point did
defense counsel challenge the victim on any alleged lack of penetration in
either instance. Instead, similar to Galindez, the defense’s main argument
was the defendant thought the sexual encounter was consensual.

   Based on the foregoing, we affirm the defendant’s convictions and
sentences which were based on the scoresheet’s inclusion of 160 sexual
penetration points.

                             The Costs Issue

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   As stated above, the defendant argues that the trial court erred in
denying his Florida Rule of Criminal Procedure 3.800(b) motion, which
challenged the legality of various costs. We agree that all but one of the
challenged costs require reversal and correction of the judgment.

     In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $60
charges for the misdemeanor counts under section 938.05, Florida
Statutes (2016), must be stricken because section 938.05 allows
imposition of court costs per case, not per count. Cf. McNeil v. State, 215
So. 3d 55, 58 (Fla. 2017) (“If the Legislature intended to impose costs per
case [under sections 938.08, 938.085, and 938.10(1), Florida Statutes
(2006)], it could have expressly done so as it has in other cost statutes.
See, e.g., . . . § 938.05(1), Fla. Stat. (2016) (‘shall pay as a cost in the case’)
. . .”).

    In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $10
charges under section 318.18(19), Florida Statutes (2016), the $30
charges under section 318.18(13)(a), Florida Statutes (2016), and the $65
charges under section 318.18(20), Florida Statutes (2016), must be
stricken because chapter 318 concerns traffic offenses, and the defendant
was not charged with traffic offenses. See Anguille v. State, 238 So. 3d
856, 856 (Fla. 4th DCA 2018) (court erred by imposing costs under section
318.18, Florida Statutes (2017), when no traffic offense was charged).

    In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $26
charges under Seventeenth Judicial Circuit Administrative Order VI-02-
D-3 must be stricken because that order applies to only county court cases
for hearings held on criminal traffic and misdemeanor violations, none of
which applies here.

   In Case No. 16-3306CF10A, the $151 charge for the Rape Crisis Trust
Fund under section 938.085, Florida Statutes (2016), must be stricken
because none of the convictions in that case are offenses enumerated
under section 938.085 as subjecting a defendant to discretionary costs.

   We reverse the imposition of the foregoing charges, and remand for the
ministerial actions of striking those charges from the judgment. The
defendant need not be present for such ministerial actions.

   We affirm the imposition of the $201 domestic violence surcharge under
section 938.08, Florida Statutes (2016), in Case No. 16-3306CF10A. See
West v. State, 244 So. 3d 1208, 1208 (Fla. 1st DCA 2018) (“[The defendant]
was convicted of breaking into the home of the mother of his child and

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committing battery. With convictions of this type, § 938.08, Florida
Statutes, requires the imposition of a $201 domestic violence-related
surcharge.”).

  Affirmed in part, reversed in part, and remanded as directed.

TAYLOR and KUNTZ, JJ., concur.

                          *        *         *

  No further motions for rehearing shall be permitted.




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