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Bills seek to stem potential costs of prosecution abuse

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Sen. David SimmonsBills designed to prevent “cash register” justice when costs of prosecution are included in plea bargains are moving in the House and Senate.

SB 846 and HB 461 both advanced during the first week of the 2020 legislative session. The bills limit how costs of prosecution can be imposed in criminal case plea bargains.

The Senate Criminal Justice Committee passed SB 846, sponsored by Sen. David Simmons, R-Longwood, on January 14. The next day, the House Subcommittee on Criminal Justice passed HB 461 by Rep. Ramon Alexander, D-Tallahassee.

Both Simmons and Alexander said the goal is to prevent prosecutors from adding inflated costs of prosecution charges to plea bargain offers — perhaps in exchange for a reduced sentence, something they said has happened in the past but is not occurring now.

“We need some guardrails to ensure in the future this doesn’t happen,” Simmons said. “It’s not happening now, but under the existing language under the law, there could be abuses.”

“You cannot achieve equal justice without consistent justice,” Alexander said.

The bills as passed set the minimum cost of prosecution in current laws — $50 for misdemeanors and $100 for felonies — as the maximum that could be imposed as part of a plea bargain. However, a judge could impose a higher amount if sufficient evidence is submitted separately from the plea arrangement.

REP. RAMON ALEXANDERThat’s a problem for prosecutors, according to 15th Circuit State Attorney Dave Aronberg. He said judges would likely accept the plea bargain terms as the “default,” without imposing higher costs, which could be a financial nightmare for state attorneys.

“The reason why we use cost of prosecution so much is because the Legislature between the years of 2007 and 2012 took away [much of] our general revenue and required us to get costs of prosecution,” he said. “This bill takes the minimums [set in statute in plea bargain cases] and makes them the maximum. That guts our budgets.”

Aronberg said his office on average imposes $111 on each misdemeanor and $468 on a felony for costs of prosecution and actually collects $100 on misdemeanors and $200 on felonies.

He agreed that in the past there had been cases in which state attorneys reduced sentences in exchange for higher costs of prosecution, but said that no longer happens.

Tenth Circuit Public Defender Rex Dimmig said, testifying in support of the bill, “There was a time in the 10th Judicial Circuit where you in fact could negotiate a preferred disposition of a case based on a higher cost of prosecution. That is not the case today.”

Although that no longer occurs, he said the law is still unfair to defendants.

If the state attorney offers a plea deal with a high cost of prosecution figure and the defendant balks, the prosecutor can withdraw the entire deal without the defendant being able to challenge the cost and leaving the defendant no option but to go to trial, Dimmig said.

Public defenders are also required to seek to get costs from a defendant, Dimmig said, but the defendant has the right to object to the proposed cost and petition for a judicial hearing to challenge the amount requested.

Simmons said he was working with state attorneys to make it easier to get higher costs but still require judicial review.

Rep. James Grant, R-Tampa, chair of the House Subcommittee on Criminal Justice, said there are two issues for lawmakers. One is the financial impact on state attorneys and not “kneecapping” them in legitimate attempts to recover prosecution costs. The second, he said, is a perception that a defendant could agree to pay a high cost of prosecution in exchange for a lowered sentence.

“If a single state attorney or assistant state attorney in the state of Florida is making contingent a plea deal on someone willing to accept an amount of money, that is nothing more than or nothing less than extortion or bribery with a badge,” Grant said. “Perhaps it’s not happening today, but I do think we can get to a place where we ensure it’s not happening in the future again.”

In the House meeting, Rep. Juan Fernandez-Barquin, R-Miami, suggested that the proposed bills should only apply to defendants represented by public defenders. During the Senate session, Sen. Jason Pizzo, D-Miami, asked whether the changes would make it harder for prosecutors to recover costs in expensive white collar and fraud cases. Dimmig replied the intent is for the final bill to allow those higher costs to be imposed with the defendant having the option of an evidentiary review, which he predicted would be rarely used.

The Senate Criminal Justice Committee passed SB 846 4-1, with Pizzo casting the negative vote. It next goes to the Appropriations Subcommittee on Criminal and Civil Justice and then the full Appropriations Committee.

HB 461 passed 15-0. It next goes to the Justice Appropriations Subcommittee and then the Judiciary Committee.

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