       Third District Court of Appeal
                               State of Florida

                         Opinion filed December 6, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-0184
                         Lower Tribunal No. 16-1566A
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                              K.M., a juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Maria de Jesus
Santovenia, Judge.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney
General, for appellee.

Before FERNANDEZ, SCALES and LINDSEY, JJ.

      LINDSEY, J.

      K.M., a juvenile, appeals an adjudication of delinquency for petit theft of
retail merchandise. K.M. challenges the level of misdemeanor for which she was

found delinquent as well as the juvenile court’s imposition of a $65 court cost. We

affirm the adjudication of delinquency for petit theft and reverse the juvenile

court’s imposition of the additional court cost.

      The State filed an amended petition for delinquency, charging K.M. with

one count of petit theft against a retailer, a first-degree misdemeanor under section

812.014(2)(e), Florida Statutes (2016). See § 812.014(2)(e), Fla. Stat. (2016) (“[I]f

the property stolen is valued at $100 or more, but less than $300, the offender

commits petit theft of the first degree, punishable as a misdemeanor of the first

degree. . . .”). Following a disposition hearing, the juvenile court denied K.M.’s

motion for judgment of dismissal and entered an order finding that K.M. had

committed the offense of petit theft as charged, withholding adjudication and

placing K.M. on probation. The juvenile court also entered a memorandum of

costs, ordering K.M. to pay court costs, fines, and fees in the amount of $218,

which included a $65 assessment for “[additional] court costs” under section

939.185(1)(a), Florida Statutes (2016). This timely appeal follows.1

1 Subsequently, K.M. filed a motion to correct disposition error under Florida Rule
of Juvenile Procedure 8.135(b)(2), challenging the imposition of the additional
court cost on the basis that the plain language of the statute, as well as several
cases decided by this Court, prohibited the juvenile court from imposing the
additional court cost. K.M.’s motion was deemed denied when the juvenile court
failed to file an order ruling on the motion within thirty days. See H.S. v. State, 42
Fla. L. Weekly D2114 (Fla. 3d DCA Oct. 4, 2017) (citing Fla. R. Juv. P.
8.135(b)(1)(B), (b)(2)(B)).

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      K.M. raises two issues on appeal. First, K.M. argues that the State’s sole

proof of the value of the stolen merchandise is inadmissible hearsay. Second,

K.M. argues that section 939.185(1)(a) authorizes the imposition of a $65

additional court cost only where a juvenile has been “adjudicated delinquent,” not

where, as here, adjudication of delinquency is withheld.

      We find no error by the trial court in admitting the testimony of the asset

protection detective as to the contents of the price tags indicating the value of the

merchandise, in this retail theft case, as this testimony did not constitute hearsay.

See F.T. v. State, 146 So. 3d 1270, 1271 (Fla. 3d DCA 2014) (concluding that the

juvenile court did not err in permitting a loss prevention officer to testify, over

objection, to the price contained on the price tags attached to merchandise stolen

by the appellant and finding that this testimony was not hearsay in a retail theft

case); Watson v. State, 415 So. 2d 128 (Fla. 4th DCA 1982) (per curiam) (holding

that the trial court did not err in allowing a store employee to testify as to the

contents of a price tag that was affixed to an item of merchandise on the day

appellant was accused of stealing the merchandise and finding that this testimony

did not constitute hearsay). As such, the juvenile court did not err in finding K.M.

delinquent for first-degree misdemeanor petit theft and we affirm on this issue.

      As to K.M.’s second issue on appeal, the juvenile court erred in imposing a

$65 additional court cost under section 939.185(1)(a) where the juvenile court



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sustained the allegations in the juvenile delinquency petition, but adjudication of

delinquency has been withheld.      This Court has recently stated that “section

939.185(1)(a) of the Florida Statutes (2015) does not authorize a Florida county to

adopt an ordinance imposing an additional $65 court cost where a juvenile court

sustains the allegations in the juvenile delinquency petition, but adjudication of

delinquency is withheld.”2 H.S. v. State, 42 Fla. L. Weekly D2114 (Fla. 3d DCA

Oct. 4, 2017) (“The statute simply does not authorize the surcharge when, as here,

a juvenile is found to be delinquent, but adjudication is withheld.”). Accordingly,

we reverse as to this issue and remand with directions that the $65 in additional

court cost be stricken from K.M.’s disposition.

      Affirmed in part and reversed in part.




2Section 939.185(1)(a), Florida Statutes (2016) mirrors section 939.185(1)(a),
Florida Statutes (2015).

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