Opinion
No. 91-2671.
May 25, 1993.
Appeal from the Circuit Court, Dade County, Eleanor Schockett, J.
Bennett H. Brummer, Public Defender, and N. Joseph Durant, Jr., Asst. Public Defender, for appellants.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before BARKDULL, BASKIN and COPE, JJ.
Antonio Blanco-Diaz and Agustin Rodriguez appeal orders imposing $3,570 investigative costs on them.
Section 939.01, Florida Statutes (1991), governs imposition of costs of prosecution and investigation. Subsection 939.01(5) provides:
(5) The court, in determining whether to order costs and the amount of such costs, shall consider the amount of the costs incurred, the financial resources of the defendant, the financial needs and earning ability of the defendant, and such other factors which it deems appropriate.
(Emphasis added). Under the wording of this particular statute, the financial resources of the defendant must be considered prior to imposition of the cost order.
The trial court took the view that ability to pay need not be considered until collection was undertaken. See State v. Beasley, 580 So.2d 139 (Fla. 1991). While that is true of some other cost statutes, id., section 939.01 requires consideration of defendants' financial resources "in determining whether to order costs and the amount of such costs. . . ." Section 939.01(5), Fla. Stat. (1991); Richter v. State, 597 So.2d 413 (Fla. 4th DCA 1992). We have carefully considered the State's argument that the point was not properly preserved for appellate review, but are not persuaded thereby.
We reverse so much of the trial court orders as assess $3,570 in investigative costs against the appellants and remand for a hearing to set the amount of costs pursuant to section 939.01, Florida Statutes (1991). The remainder of the trial court's orders are not challenged and are affirmed.
Affirmed in part, reversed in part, and remanded.