DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
CHRISTOPHE A. CREMERS,
Appellee.
No. 4D19-3723
[April 28, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562016CF002993A.
Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellee.
ON MOTION FOR CLARIFICATION
PER CURIAM.
We grant the appellee’s motion for clarification, withdraw our opinion,
and substitute the following opinion in its place.
The State appeals an order entered pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2) on defendant’s motion to correct his sentence
reducing the costs of prosecution assessed from $200 to $100. 1 On
1 Defendant filed an appeal and then filed a motion to correct a sentencing error
(the prosecution costs) pursuant to Florida Rule of Criminal Procedure
3.800(b)(2). The State then cross-appealed the judge’s ruling granting relief. The
defendant then voluntarily dismissed his appeal. Section 924.07, Florida
Statutes, and Florida Rule of Appellate Procedure 9.140 set forth what matters
may be appealed by the State. Section 924.07(1)(d) permits the State to appeal
a question of law when the defendant appeals, and permits the State appeal to
continue even when the defendant dismisses the appeal. Because the parties
have stipulated that there was a lack of preservation of the cost issue at
appeal, the defendant concedes error, because he affirmatively told the
court at the sentencing hearing that he had no objection to the imposition
of these costs after the State requested them. Pursuant to section
938.27(8), Florida Statutes, a court shall impose $100 as the costs of
prosecution for a felony and may impose a greater amount upon sufficient
proof of such costs. However, an objection to the sufficiency of the proof
must be made contemporaneously with the assessment of costs. Because
the proper documentation of the costs of prosecution is an evidentiary
error in the sentencing process, it cannot be preserved through a rule
3.800(b)(2) motion. See Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010);
see also Mapp v. State, 71 So. 3d 776 (Fla. 2011) (finding that insufficiency
of the evidence at a restitution hearing is not cognizable under rule
3.800(b)). Therefore, the court erred in granting relief. We reverse and
remand for reinstatement of the original judgment for costs including $200
in prosecution costs.
Reversed and remanded.
WARNER, MAY and ARTAU, JJ., concur.
* * *
Final Upon Release; No Motion For Rehearing Will Be Entertained.
sentencing, they stipulated to the facts, and the issue presented in this case is
one of law.
2