GRACE ANN KING v. STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D21-2985

LT Case No. 2019-CF-001050-XX

_____________________________

GRACE ANN KING,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for St. Johns County.

R. Lee Smith, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A.,

Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kristen L.

Davenport, Assistant Attorney General, Daytona Beach, for

Appellee.

December 7, 2023

EISNAUGLE, J.

We affirm Grace Ann King’s (“Appellant”) judgment and

sentence. We write to explain why we reject her argument that

the written cost order is in error because, while the written order

contains statutory citations, it does not contain citations to the

municipal ordinances authorizing two costs.

Specifically, the trial court imposed a $2 cost, citing section

938.15, Florida Statutes (2021), and a $65 cost, citing section

939.185, Florida Statutes (2021).

Section 938.15 provides that:

In addition to the costs provided for in s. 938.01,

municipalities and counties may assess an additional $2

for expenditures for criminal justice education degree

programs and training courses, including basic recruit

training, for their respective officers and employing

agency support personnel, provided such education

degree programs and training courses are approved by

the employing agency administrator, on a form provided

by the Criminal Justice Standards and Training

Commission, for local funding.

Section 939.185(1)(a) provides that:

The board of county commissioners may adopt by

ordinance an additional court cost, not to exceed $65, to

be imposed by the court when a person pleads guilty or

nolo contendere to, or is found guilty of, or adjudicated

delinquent for, any felony, misdemeanor, delinquent act,

or criminal traffic offense under the laws of this state.

Neither statute authorizes the imposition of any cost on its

own. Instead, both statutes authorize a local authority to adopt an

ordinance imposing the cost. Therefore, according to Appellant,

without a citation to the applicable ordinances in the written order,

the written cost order is in error.

Citation to Statutory Authority

Over the last couple of decades, we have often summarily

reversed cost orders with an instruction that the trial court cite

statutory authority for each cost imposed in the written order.

E.g., N.B. v. State, 48 Fla. L. Weekly D662, D662 (Fla. 5th DCA

Mar. 31, 2023) (“[T]he trial court is required to provide a citation

to the statutory basis for each cost imposed. Accordingly, we strike

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the costs from the disposition order and remand for entry of an

amended disposition order that contains a statutory citation as to

each cost imposed by the court.” (citations omitted)); Strong v.

State, 140 So. 3d 680, 681 (Fla. 5th DCA 2014) (“We strike the

court’s imposition of fees and costs and remand for the trial court

to cite the correct statutory authority.” (citations omitted)); J.S. v.

State, 920 So. 2d 752, 753 (Fla. 5th DCA 2006) (“The law is well

settled that trial courts lack the authority to impose costs and fines

in criminal cases unless such imposition is specifically authorized

by statute and the statutory authority is cited in the defendant’s

written disposition order.” (citations omitted)). However, at least

in recent years, we have not engaged in any substantial analysis

or identified the legal basis for our decisions.

As we will now explain, the rule requiring citation to authority

for each cost imposed has a long but checkered history in Florida’s

jurisprudence. First, we will discuss the rule’s apparent origin and

development over several decades. Second, we will examine our

own decisions, demonstrate that the rule is based on due process,

and conclude that due process is satisfied when the authority is

“evident in the record.” Finally, we will explain our decision in this

case.

The Rule’s Origin and History

The rule appears to have its origin in the second district’s

summary decision over three decades ago in Allen v. State, 508 So.

2d 360 (Fla. 2d DCA 1987). In that case, without citing any

authority or offering a substantial explanation, the court struck a

condition of probation requiring payment to the court

improvement fund. Id. at 360. In so doing, the court merely

explained that “[t]he state has offered no authority for requiring a

contribution to the court improvement fund.” Id.

Less than three months later, the court relied on its decision

in Allen to reverse a $1,000 cost, in part, because “the record

reveal[ed] that the court failed to cite proper statutory authority

for assessing the $1,000 costs.” Brown v. State, 506 So. 2d 1068,

1068 (Fla. 2d DCA), rev. denied, 515 So. 2d 229 (Fla. 1987).

Notably, neither Allen nor Brown states that a written cost order

must always cite authority for each cost imposed.

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The next year, the second district applied its decision in

Brown, and reversed a cost order because the “oral pronouncement

included no statutory authority for the assessment.” Moore v.

State, 525 So. 2d 1031, 1032 (Fla. 2d DCA 1988) (emphasis added).

That same year, in Stewart v. State, 522 So. 2d 518 (Fla. 2d DCA

1988), the court reversed a cost order and identified one basis for

the rule: “[t]he failure of the trial court to cite statutory authority

when it imposed the court costs deprived the appellant of the

opportunity to object to the costs.” Id. at 518 (citation omitted).

A few years later, the second district clarified the rule in

Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994). In Sutton,

the district court explained “the record must contain a citation to

the proper statutory authority supporting the assessment of such

costs.” Id. at 1033 (emphasis added) (citation omitted).

During this early time in the rule’s development, the first

district applied a similar principle. For instance, in Bradshaw v.

State, 638 So. 2d 1024 (Fla. 1st DCA 1994), the court concluded “it

is improper to impose additional court costs without reference to

statutory authority, or an explanation in the record as to what the

additional costs represent, which is sufficiently clear to permit a

reviewing court to determine the statutory authority for the costs.”

Id. at 1025 (emphases added). Similarly, in Gibson v. State, 577 So.

2d 1001 (Fla. 1st DCA 1991), the first district struck costs because

“the trial court did not provide the statutory authority for the

imposition of the fines in the order or at the sentencing hearing.” Id.

at 1001 (emphasis added) (citation omitted).

But then, for reasons not entirely clear to us, the second

district announced, in what appears to be dicta, a more technical

requirement in Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)

(en banc), superseded by statute, § 938.15, Fla. Stat. (1997), as

recognized in Waller v. State, 911 So. 2d 226, 227 (Fla. 2d DCA

2005). In that case, the second district stated, “[w]e remind the

trial courts that the written order on costs must contain an

appropriate citation to the statute.” Id. at 119 (emphasis added).1

1 We find Reyes both flawed and difficult to decipher. Despite

its strict-sounding pronouncement, Reyes affirmed a cost lacking a

4

Then, the following year, this more technical language gained

some traction in R.T.D. v. State, 679 So. 2d 1263 (Fla. 2d DCA

1996), when the court struck costs “because the trial court did not

cite any statutory authority for these costs in its order.” Id. at 1264

(emphasis added). Since then, the second district has regularly

employed similar language when reversing cost orders. See Weber

v. State, 368 So. 3d 487, 489 (Fla. 2d DCA 2023); Sanders v. State,

189 So. 3d 946, 946 (Fla. 2d DCA 2016); Kirby v. State, 695 So. 2d

889, 890 (Fla. 2d DCA 1997). That said, even the second district

does not always require citation to authority in the written order.

See T.D.S. v. State, 45 So. 3d 18, 19 (Fla. 2d DCA 2010) (affirming

a cost order lacking citation to authority because “[t]he situation is

far less complex in juvenile cases”).

Since Reyes and R.T.D. were decided, the first district has been

inconsistent in its description of the rule, sometimes focusing on

citation to authority in the written order, and other times

recognizing that citation in the record is sufficient. Compare

Williams v. State, 285 So. 3d 1003, 1005 (Fla. 1st DCA 2019) (“[I]t

is improper to impose additional court costs without reference to

statutory authority, or an explanation in the record as to what the

additional costs represent.” (citation omitted)), Carter v. State, 173

So. 3d 1048, 1051 (Fla. 1st DCA 2015) (striking two costs imposed

“without appropriately citing the statutory authority for the costs

in the order”), and Bowen v. State, 702 So. 2d 298, 299 (Fla. 1st

DCA 1997) (“We strike that portion of the order by which the

appellant is directed to pay $100 to the Drug Abuse Trust Fund and

$100 to the Florida Crime Lab because the order fails to cite

statutory authority for those costs.” (citations omitted)), with

Harrison v. State, 146 So. 3d 76, 78 (Fla. 1st DCA 2014) (“While the

statutory citation because the court found the written order’s

reference to “the ‘Hillsborough County Drug Fund’ [was] a

sufficient description to adequately substitute for a statutory

citation in this case.” Id. at 121. At the same time, Reyes

purported to adopt a forward-looking rule in apparent conflict with

its holding, stating “[f]uture cost orders, however, must describe

this fund with reference to the statute and ordinance supporting

its existence.” Id. at 114.

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statutory authority for these costs is not designated, the purpose

for these assessments is evident.”), receded from on other grounds

by Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015).

In contrast, the fourth district has clearly and steadfastly

resisted any suggestion that a written cost order must always

include citation to statutory authority. Instead, it appears that

court only requires a sufficient record to permit appellate review.

See, e.g., Anderson v. State, 229 So. 3d 383, 386–87 (Fla. 4th DCA

2017) (“While the trial court was not required to cite the specific

statutory authority for each assessment imposed, the trial court

was required to provide a breakdown of the assessments and

identify what they represent, so as to permit this court to

determine the statutory authority for each assessment.”); Lyons v.

State, 837 So. 2d 540, 541 (Fla. 4th DCA 2003) (recognizing trial

court need not specify statutory authority authorizing costs;

finding “Sutton unpersuasive”); I.B. v. State, 806 So. 2d 610, 611

(Fla. 4th DCA 2002) (“[T]he record clearly reflects that the court

stated the amount and basis for the statutorily authorized public

defender fees and costs imposed.”), abrogated on other grounds as

stated in D.G. v. State, 896 So. 2d 920, 921–22 (Fla. 4th DCA

2005).2

As one might expect, some of Florida’s courts, including the

first and second districts, have also remanded cost orders for

citation to local authority. See, e.g., Dibelka v. State, 326 So. 3d

835, 837 (Fla. 2d DCA 2021) (remanding for the trial court to

“provide the applicable county ordinance requiring the additional

cost” imposed under section 939.185); Carter v. State, 173 So. 3d at

1051 (remanding for the trial court to cite the appropriate

ordinance for the $65 cost imposed pursuant to section 939.185).

Of course, this is not surprising given the rule pertaining to

citations to statutory authority.

In contrast, and consistent with its jurisprudence, the fourth

district maintains a balanced approach, concluding that a citation

to a municipal ordinance is not per se required. See Chavis v. State,

2 We have not identified any decision in the third or sixth

districts deciding this issue.

6

247 So. 3d 9, 10 (Fla. 4th DCA 2018) (“We now hold there is

likewise no need to cite the ordinance for which court costs are

imposed.”).

The Legal Basis for the Rule: Due Process

While Florida’s decisions on this issue often employ

unguarded and imprecise language, largely untethered from any

stated legal principle,3 we think this court’s opinion in Brown v.

State, 666 So. 2d 240 (Fla. 5th DCA 1996), implicitly grounds the

rule on principles of due process.

In Brown, much like today, we were forced to clarify an overly

broad statement we made a year earlier in Samuels v. State, 649

So. 2d 272 (Fla. 5th DCA 1994). In our summary analysis set forth

in Samuels, we said “[a]ssessed costs whose statutory authority is

not specifically identified on the sentencing form should have a

reference by statute number to permit appellate review.

Otherwise, this court is left to guess at the authority.” 649 So. 2d

at 273 (emphasis added) (footnote omitted).

Although Samuels does not say that the written order itself

must always contain citations to authority without regard for the

record, there is little doubt that the language we used in Samuels

could cause confusion. Therefore, we set the record straight in

Brown, explaining:

[W]e clarify Samuels and hold that the specific statute

number is unnecessary where, as here, the defendant has

had notice and an opportunity to be heard, and the court’s

oral pronouncement and written order are specific

enough to place the parties and the reviewing court on

notice of the statutory authority for the assessment.

3 Cf. T.D.S., 45 So. 3d at 18 (“The source of the requirement

that a cost assessment in a criminal proceeding contain a reference

to the statutory authority is not directly found in a statute or a rule

of procedure.”).

7

666 So. 2d at 242. Thus, in Brown, we affirmed the challenged cost

relying, in part, on the oral pronouncement to identify the

authority for the assessment. Id.

Based on our own analysis in Brown, and decisions in other

courts like Bradshaw, we conclude that the requirement to disclose

the authority for the imposition of each cost is based in due process.

Amend. XIV, § 1, U.S. Const.; Art. I, § 9, Fla. Const.4 But “due

process is flexible and calls for such procedural protections as the

particular situation demands.” Clarington v. State, 314 So. 3d 495,

501 (Fla. 3d DCA 2020) (quoting Morrissey v. Brewer, 408 U.S. 471,

481 (1972)); see also Tauber v. State Bd. of Osteopathic Med.

Exam’rs, 362 So. 2d 90, 92 (Fla. 4th DCA 1978). As the United

States Supreme Court has explained, “[t]he requirements of due

process of law ‘are not technical, nor is any particular form of

procedure necessary.’” Mitchell v. W. T. Grant Co., 416 U.S. 600,

610 (1974) (citation omitted). “The very nature of due process

negates any concept of inflexible procedures universally applicable

to every imaginable situation.” Id. at 610 (quoting Cafeteria &

Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)).

Importantly, our recent precedent does not foreclose a rule

based on principles of due process. Even though many of our

decisions use language focused on citation to authority in the

written cost order, we have not receded from Brown or otherwise

decided that citation to authority in the written order is strictly

required even when the authority is otherwise evident in the

record.

For instance, while our description of the rule in J.S. may

have caused confusion, in our application of the law to the facts of

that case, we did not hold that the order was reversed solely for

failure to cite authority in the written order. J.S., 920 So. 2d at

753–54. Instead, J.S. generically states “the trial court failed to

4 We are aware that some courts have identified a “practical”

purpose for the rule—to allow “the clerk of court to know the

precise nature of the assessment.” Reyes, 655 So. 2d at 113, 121;

see also T.D.S., 45 So. 3d at 19. However, we have found no legal

basis for a requirement that benefits the clerk of court, statutory

or otherwise.

8

cite to any legal authority justifying the imposition of the fine,”

without indicating if citation in the written order is always

required or if citation elsewhere in the record would be sufficient.

Id. at 753.

Indeed, even J.S. considered more than the written order. In

that case we reasoned that the trial court “acknowledged on the

record that it had no statutory basis upon which to impose the

fine.” Id. at 754 (emphasis added). In short, J.S. quite expressly

considered the propriety of a fine where the written order

contained no citation to authority and the record affirmatively

established that there was no such authority. As a result, J.S. did

not, and could not, hold that a written cost order must always

contain citations to authority even when the authority is otherwise

evident in the record.

Moreover, this court routinely relies on opinions that do not

imply any technical requirement exists. For example, recently in

N.B., we struck a cost and remanded with instructions to enter “an

amended disposition order that contains a statutory citation as to

each cost imposed by the court.” 48 Fla. L. Weekly at D662. In so

doing, we relied on this court’s precedent in V.D. v. State, 922 So.

2d 1037 (Fla. 5th DCA 2006), and the first district’s decision in

Bradshaw—neither of which implies any rigid requirement for

citation to authority in a written order. See also J.S., 920 So. 2d

at 753 (relying on Bradshaw).

In V.D., we reasoned that a “trial court must provide a

statutory basis for every cost imposed,” saying nothing about

whether support for the cost must be in the written order or merely

evident in the record. V.D., 922 So. 2d at 1038. And as we

previously observed, Bradshaw concluded that “an explanation in

the record as to what the additional costs represent” is sufficient.

638 So. 2d at 1025 (emphasis added).

This court’s limited precedent concerning citations to local

authority is no different. We are aware of at least two summary

opinions in which we have referenced a written cost order’s lack of

citation to municipal authorities. See Charles v. State, 292 So. 3d

1270, 1271 (Fla. 5th DCA 2020); Cash v. State, 286 So. 3d 384, 385

(Fla. 5th DCA 2019). But again, neither case considers whether a

9

cost order is proper when authority for the cost imposed is

otherwise evident in the record. See Charles, 292 So. 3d at 1271;

Cash, 286 So. 3d at 385; cf. Harrison, 146 So. 3d at 78.

In short, consistent with the first district’s pronouncement in

Bradshaw, we made it clear almost three decades ago in Brown

that there is no strict rule requiring citation to authority in every

written cost order even if the authority is otherwise evident in the

record. And while our many decisions of late did not heed the

lesson learned from our lack of clarity in Samuels, as we have

explained, none of our decisions have receded from, or even

adopted a rule in direct conflict with, our holding in Brown.

The Cost Order in this Case

Turning to this case, given our conclusion that the

requirement for a citation to authority is based on due process, we

reject any technical requirement that citation to local authority

must always appear in every written cost order. While a citation

in the written order might be the best practice, due process is

satisfied, and appellate review possible, when there is citation to

authority in the record or when the basis for each cost is otherwise

evident in the record.

Having clarified the basis for the requirement that the record

disclose the authority for costs imposed, we affirm the cost order

in this case because Appellant does not argue on appeal that the

failure to cite the local authority in the written cost order in any

way deprived her of due process. Specifically, Appellant does not

argue that the record lacks sufficient information to permit review

of the order or that authority for the costs imposed is not evident

in the record.

Instead, Appellant’s argument is based solely on a rigid, per

se requirement for citation to local authority in every written cost

order—an argument we reject. As such, Appellant has not carried

her burden to demonstrate error on appeal. See Cox v. Great Am.

Ins. Co., 203 So. 3d 204, 205 (Fla. 4th DCA 2016) (“[O]n appeal[,]

the duty rests upon the appealing party to make error clearly

10

appear.” (quoting Lynn v. City of Fort Lauderdale, 81 So. 2d 511,

513 (Fla. 1955))).

AFFIRMED.

EDWARDS, C.J., concurs.

PRATT, J., concurs with opinion.

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Not final until disposition of any timely and

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

9.331.

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Case No. 5D21-2985

LT Case No. 2019-CF-001050-XX

PRATT, J., concurring.

The panel opinion carefully canvasses and contextualizes our

court’s precedent, which often has summarily remanded cost

orders with instructions to cite statutory authority for the imposed

costs. Until today, our court never fully explained the legal basis

for that precedent. In failing to identify the underlying law for the

citation requirement that we imposed, many of our previous

decisions resembled the orders that we remanded—disposition

without exposition. I believe we owe trial courts an explanation

when we disturb their orders, and I support the panel opinion’s

effort to build on Brown v. State, 666 So. 2d 240 (Fla. 5th DCA

1996), and provide a full foundation for our prior decisions.

Our precedent in this area can have only three bases in law: a

statute, a procedural rule, or a constitutional requirement. With

no on-point statute or procedural rule, see T.D.S. v. State, 45 So.

3d 18, 18 (Fla. 2d DCA 2010), the panel opinion lands on due

process as the source. Indeed, the alternative could pose

constitutional concerns. Were our citation requirement to lack any

foundation in due process, we would be left with a rule untethered

to any substantive law and serving only a “practical” purpose,

Reyes v. State, 655 So. 2d 111, 113, 114 (Fla. 2d DCA 1995) (en

banc)—a freestanding regulation of the form and content of trial

court orders that operates much like a rule of court practice and

procedure. The district courts of appeal lack authority to create

such rules. That authority belongs to the Florida Supreme Court.

See Art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules

for the practice and procedure in all courts . . . .”); see also Haven

Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991)

(describing the Florida Supreme Court’s “exclusive authority to

regulate” court practice and procedure); but cf. Bernhardt v. State,

288 So. 2d 490, 496 (Fla. 1974) (“Rules of practice and procedure

adopted by this Court super[s]ede any legislative enactment

governing practice and procedure to [the] extent that statute and

rule may be inconsistent.” (emphases added)).

I therefore join in the panel opinion, which grounds our

precedent in due process and avoids the constitutional concerns to

12

which a different path might lead. But I do so with some

reservation. To the best of my knowledge, our court never has

received briefing on the issue about which we opine today: whether

due process requires that a defendant receive notice (whether from

the record or from the written order) not only of a cost’s imposition,

but also of its legal basis. We certainly had no such briefing before

us here. And there may be some reason to doubt whether due

process imposes such a requirement. I take the theory to be that

defendants must have notice of a cost’s asserted legal basis—and

not just notice of its imposition—to enable meaningful rehearing

or appellate review. But it’s unclear to me why a defendant facing

an unexplained cost with no obvious authorizing statute or

ordinance couldn’t appeal (or move for rehearing) and argue that

the cost was imposed ultra vires. Perhaps there are some cases—

particularly those presenting commingled costs—in which a

failure to itemize the costs might inhibit effective appellate review.

But at a minimum, it seems that a defendant’s inability to

ascertain the legal basis for a cost, whether from the record or from

the written order, does not in itself preclude him from

meaningfully challenging it.

Notwithstanding my reservations, I recognize that neither

party in this case has asked us to revisit our precedent. And the

panel opinion does a great service to our court by plausibly

grounding our prior decisions in a substantive legal principle that

avoids encroaching on our reviewing court’s rulemaking authority.

Indeed, I cannot think of a more persuasive justification for our

precedent than the one that the opinion offers. I thus join the

opinion, with the caveat that I would be open to reexamining our

precedent en banc in a future case that presents thoughtful

briefing on the issue.

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