Recouping Investigative Costs from Convicted Criminals

by Judge Scott J. Silverman, Dade County

Having served as a Dade County Court Judge for the past five years, I have addressed thousands of criminal cases. The total number of law enforcement hours attributable to the successful prosecution of many of those cases is enormous. On any given weekday, the first floor courtrooms of the Richard E. Gerstein Justice Building are overflowing with police officers.

The vast majority of cases brought before the County Court result in negotiated pleas between the State of Florida and the criminal defendant. In most instances, once a plea is accepted, the officer views the case finished, and leaves the courtroom. The Florida State Legislature offers police agencies, through their individual officers, an opportunity to be reimbursed for costs expended in the investigation of each applicable criminal cases.

The Recoupment Statute

Florida Statute 939.01 is entitled Judgment for Costs on Conviction. The 1987 law provides, in pertinent part, that law enforcement agencies are entitled to a judgment for investigative costs against convicted defendants in both misdemeanor and felony cases. To be eligible, the law enforcement agency must request a judgment for investigative costs and present documentary support for it.

The practical effect of F.S. 939.01 is to lessen the taxpayer burden, and to force the criminal to pay for the expenses incurred by law enforcement agencies during the course of an investigation. It imposes a financial burden upon convicted criminals, in addition to any fines and court costs that may otherwise be imposed.

While "investigative costs" are not specifically defined by the statute, they do include actual expenses incurred while conducting the investigation of the criminal case, as well as the salaries of permanent employees. "Investigative costs" do not include ancillary costs such as judicial salaries, attorneys fees, clerical and reporting services, or juror reimbursement.

Courtroom Procedure

Before a judge is authorized to impose a monetary judgment against a defendant for investigative costs, the defendant must be convicted. Should a defendant be found guilty of the offense charged, but the judge withholds adjudication, the defendant is not convicted for purposes of the statute. In such a case, the judge is prevented from rendering a cost judgment. A defendant must actually be adjudicated guilty before any costs can be levied.

Generally, the state attorney must file a written motion to tax costs against the defendant. By adhering to this procedure, defendants are afforded an opportunity to prepare and be heard on the pending issue thereby satisfying their constitutional right to procedural due process.

The burden of establishing the costs of investigation is on the state attorney. In practice, an officer presents the prosecutor with time and expense records. The prosecutor then attempts to introduce the records into evidence before the court. Accordingly, it is important for law enforcement to work closely with the Office of the State Attorney when seeking these costs. Once the state attorney establishes the costs, the judge is obligated to consider the defendant's financial condition. While the prosecutor has the burden of proofing the costs to be assessed, the defendant has the burden of demonstrating his or her financial needs and resources. The court must also consider other factors it deems appropriate in determining whether to order costs and the amount of such costs.

Enforcing the Cost Judgment

The court can order the cost judgment paid in several ways. It can direct a defendant to pay the amount immediately. In addition, a judge can specify a period in which payment is to be made or may designate an installment payment plan. Any default in payment of costs ordered may be collected by any means authorized by law for the enforcement of judgments.

In the event that a defendant is placed on probation or community control, the judge must make payment of the investigative cost judgment a special condition of such sentence. If the required payment is not made, the court may revoke the defendant's probation or community control.

The legislature apparently wants to encourage the collection of investigative costs by providing for a favorable disposition of any funds collected. Any costs received are returned to the investigative agency which incurred the expense. The court is authorized to direct the clerk to collect and dispense the cost payments in any applicable case.

Where to from here?

The investigative cost judgment statute presents law enforcement agencies with an opportunity to recoup the costs they incur in the investigation of convicted criminals. The statute affords police agencies with a method of increasing funding in an age of tighter and leaner budgets. Some may argue that its strength lies in its ability to compel criminals to be socially and financially cognizant of their impact on the criminal justice system. Whether police agencies fully avail themselves of the provisions of F.S. 939.01 and its underlying purpose remains to be seen.

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