Kahasim Rashid Brown v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D21-2947

_____________________________

KAHASIM RASHID BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the County Court for Escambia County.

Kerra Smith, Judge.

September 21, 2022

ORDER STRIKING ANDERS BRIEF

PER CURIAM.

Following a jury trial, Appellant was convicted of one count of

driving under the influence (DUI) causing property damage

(second offense), and one count of leaving the scene of an accident

involving property damage. Appellant’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), and this Court has conducted the review

required by Anders, State v. Causey, 503 So. 2d 321 (Fla. 1987),

and Florida Rule of Appellate Procedure 9.140(g)(2)(A). We affirm

the judgment, but because our review reveals several sentencing

errors, we strike the Anders brief to allow counsel to seek relief

under Florida Rule of Criminal Procedure 3.800(b)(2). See Fla. R.

App. P. 9.140(g)(2)(b).

First, the trial court erred by ordering that Appellant’s

driver’s license be suspended for five years. A five-year suspension

is authorized only when the driver had another DUI conviction

within the preceding five years. § 322.28(2)(a)2., Fla. Stat. (2020).

Appellant’s previous DUI conviction occurred more than five years

before this one.

Second, only $374 of the $456 court costs assessed on the DUI

count are supported by the statutes and county ordinances listed

in the court’s written order. See §§ 938.01, 938.03, 938.05, 938.06,

938.07, 938.13, 938.19, 939.185, 775.083(2), 318.18(17), Fla. Stat.;

ESCAMBIA CNTY., FLA. ORDINANCES §§ 34-7, 34-9 (authority for up

to $374 in costs). The remaining $82 in costs was imposed in error.

While it is not clear what the additional $82 in costs covered,

two of the other provisions listed in the trial court’s order—sections

938.27 and 318.18(18)—do not apply to this case. Under section

938.27, a trial court may assess a minimum of $50 in prosecution

costs for a misdemeanor, but the State is required to request such

costs (which it did not do here), and the State is further required

to demonstrate a factual basis for assessing costs above the $50

minimum (which it also did not do here). See Richards v. State, 288

So. 3d 574, 576 (Fla. 2020) (holding that the State is required to

ask a trial court to assess prosecution costs); Jenkins v. State, 332

So. 3d 1013, 1018 (Fla. 4th DCA 2022) (holding that the State

bears the burden of proving that costs of prosecution exceed $50

statutory minimum).

Section 318.18(18) provides for a $12.50 administrative fee,

but it only applies with respect to noncriminal violations, and is

thus inapposite to Appellant’s DUI conviction. The final remaining

listed provision, section 938.15, provides for a $2 assessment for

criminal justice education. However, to be operative, it requires

enactment via local government ordinance. No such ordinance is

cited in the written order as is required. See Snowden v. State, 685

So. 2d 974, 975 (Fla. 1st DCA 1996) (holding that authority for a

court cost imposed in a criminal case must be cited in trial court’s

written order).

To the extent the unaccounted-for sum of $82 in court costs

consists of prosecution costs under section 938.27, the costs may

2

not be re-imposed on remand. See Skinkle v. State, No. 5D21-2504,

2022 WL 1592566 at *1 (Fla. 5th DCA May 20, 2022) (holding that

State’s failure to request prosecution costs constitutes a waiver of

those costs). However, to the extent the sum consists of other court

costs, it may be re-imposed on remand following the proper

procedures (i.e., citation to the controlling statutes and/or local

ordinances). See Snowden, 685 So. 2d at 975.

The third sentencing error lies in the $30 State facilities

surcharge imposed as to Count 3 under section 318.18(13)(a)1.,

Florida Statutes. Like section 938.15, this surcharge requires

adoption by local government ordinance. The ordinance is not cited

in the written order as required. The surcharge may be re-imposed

with the necessary citations. See id.

The final two sentencing errors lie in the trial court’s

modification of Appellant’s monetary obligations. On Appellant’s

motion, the trial court authorized Appellant to perform community

service at a rate of $10 per hour in lieu of paying fines and court

costs. As to the fines, this alternative is only permissible with

respect to the DUI count (for which Appellant was fined $3,000 *).

See § 316.193(6)(m), Fla. Stat. (providing that a trial court may

“order that the defendant participate for a specified additional

period of time in public service or a community work project in lieu

of payment of that portion of the fine which the court determines

the defendant is unable to pay”). Community service is not an

authorized alternative to the payment of the $250 fine assessed on

the leaving-the-scene count. Rather, regarding this count—a

second-degree misdemeanor—section 775.083(1), Florida

Statutes, provides that “[i]f a defendant is unable to pay a fine, the

court may defer payment of the fine to a date certain.”

The last error is the trial court’s authorizing Appellant to

perform community service in lieu of paying court costs. Former

section 27.3455, Florida Statutes, which authorized trial courts to

allow a defendant to perform community service in lieu of paying

* This fine was authorized pursuant to the jury finding that

Appellant had a breath-alcohol level of 0.15 or higher. See §

316.193(4)(a), Fla. Stat.

3

court costs, was amended nearly four decades ago to remove this

alternative. See Calhoun v. State, 522 So. 2d 509, 510 (Fla. 1st

DCA 1988) (ordering defendant’s resentencing pursuant to

amended version of section 27.3455, acknowledging that the

amended version deletes the community service alternative for

indigent defendants); Price v. State, 620 So. 2d 1105, 1106 (Fla. 4th

DCA 1993) (“The statute authorizing the imposition of community

service in lieu of costs was amended effective October 1, 1986, and

eliminated this alternative.”); see also Garrison v. State, 685 So. 2d

53, 55 (Fla. 2d DCA 1996); Bush v. State, 579 So. 2d 362, 363 (Fla.

4th DCA 1991); Sims v. State, 520 So. 2d 675, 675 (Fla. 5th DCA

1988).

Accordingly, on the Court’s own motion and pursuant

to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the initial

brief filed January 25, 2022, is stricken in order to permit the filing

of a motion pursuant to Florida Rule of Criminal Procedure

3.800(b)(2). Counsel for Appellant shall file the motion with the

lower tribunal within twenty days of the date of this order, and the

lower tribunal is directed to resolve the motion in accordance

with rule 3.800(b)(2)(B). The clerk of the lower tribunal shall

thereafter transmit a supplemental record on appeal pursuant

to Florida Rule of Appellate Procedure 9.140(f)(6), and counsel for

Appellant shall file an amended initial brief within twenty days

following transmittal of the supplemental record. See Adams v.

State, 197 So. 3d 641, 642 (Fla. 1st DCA 2016).

B.L. THOMAS, KELSEY, and NORDBY, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

4