Joseph Nelson West v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D16-5379 _____________________________

JOSEPH NELSON WEST,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Suwanee County. David W. Fina, Judge.

June 20, 2018

PER CURIAM.

Joseph Nelson West appeals his conviction for burglary of a dwelling with a battery, alleging that the trial court improperly denied his challenges to strike jurors for cause, and assessed an erroneous $352 battery surcharge against him at sentencing. We affirm without comment, except with respect to the fee.

Mr. West was convicted of breaking into the home of the mother of his child and committing battery. With convictions of this type, § 938.08, Florida Statutes, requires the imposition of a $201 domestic violence-related surcharge. Here, the trial court assessed a $352 surcharge. But no authority exists to support the additional $151 surcharge amount imposed by the court.

The State argues that the additional $151 amount is supported by § 775.0835(1), which allows the trial court to levy an optional fine for causing injury to another person. But the trial court did not purport to fine Mr. West, but only to impose the battery surcharge. Furthermore, the court didn’t make the findings necessary to impose such a fine. Before imposing a fine under § 775.0835(1), a court must find “that the defendant has the present ability to pay the fine and finds that the impact of the fine . . . will not cause [the defendant’s] dependents to be dependent on public welfare.” Id. The trial court did not make these findings. See Houle v. State, 33 So. 3d 822, 823 (Fla. 4th DCA 2010) (striking fines imposed under § 775.0835 due to the absence of required findings). We thus remand with directions to strike $151 from the battery surcharge amount, leaving only the $201 amount authorized by § 938.08.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

WOLF, OSTERHAUS, and WINSOR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.