The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

V.K.E. v. State of Florida

THE MARSHAL: PLEASE RISE . LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE S EA TE D .

CHIEF JUSTICE: GOOD MORNING AGAIN. THE LAST CASE ON THI S MORNING'S DOCKET IS ANOTH ER J UVENILE CASE . V .K.E. VERSUS T HE STATE OF FLORIDA . M R. CLEGG?

GOOD MORNING , YOUR HONOR , MADAM CHIEF JUSTICE. MY NAME IS M AR VI N C LE GG, REPRESENTING THE INTERESTS OF THE MINOR C HI LD , V.K .E .. I'M KIND OF GLAD T HAT MR. HED !!!! !! HEDRICK HAS A LREADY LEFT BECAUSE H IS FATHER G AVE M E M Y FIR ST JOB CLERK IN G A L ITTL E BIT AGO AND MY POSITION IS DIFFERENT THAN HIS POSITION TODAY U NFORTUNATELY, I GUESS, FOR ONE OF US. WE'RE HERE ON A CERTI FI CA TION FROM THE 5 TH D IS TR IC T I N V.K.E.'S CASE CONCERNING T HE ISSUE OF WHAT COSTS CAN B E ASSESSED AGAINST JUVENILES AS ONE OF GRE AT I MP ORTANC E O R O NE H AVING A GRE AT AFF EC T U PO N THE PROPER ADMIN ISTRATION OF JUSTICE.

IS I T A COS T , D O W E EVE N NEED TO G ET THE N OM EN CLAT UR E DOWN BEFORE WE TAL K ABOUT THESE THINGS BECAUSE THERE SEEMS TO BE D IF FE RE NCES DEPENDING ON WHAT YOU CALL IT. THIS SEEMS TO BE A SUR C HA J.

YOUR HONOR, I THINK M Y ORIGINAL POSITION WAS THAT THEY ARE A LL S O INT ERMI NG LE D , SUCH A M UD DY MES S O F TERMI NOLOGY THAT YOU CAN'T SEPARATE THEM BUT THEN I WENT BACK AND READ THE 5TH DIS TRICT'S FOLLOW-UP CASE T O V.K.E. WHICH WAS I THI NK SLG , AND IN THA T J UDGE O RFIN GE R , JUNIOR, I T HINK THE Y S OR T O F SHOT THEMSELVES IN THE FOOT WHEN THEY CIT ED THE K ENDR Y CASE FROM THIS C OURT I B EL IEVE IT WAS, GOES BACK T O - - I 'M BAD W ITH CAS E NAM ES B UT IT GOES BACK TO A 188 7 CAS E AND THEY DEF INED F EE S AS T HE V ER Y THING T O B ACKT RA CK A L IT TL E BIT, THE J UV ENIL E JUS TICE C HAPTER 9 85 SAY S F EES SH AL L NOT BE A SS ES SE D A GA IN ST JUVENILES AND IT U SES T HE W OR D FEES AND THE 5TH SAY S , Y OU A RE TALKING ABOUT F EES HERE. YOU ARE NOT TALKING ABOUT COSTS, AND WE ARE A SSES SI NG COSTS AND S UR CH AR GE S I N THE C HAPTER 939 O R W HATEVE R I T IS . WE ARE A SS ESSING TWO D IF FERENT THINGS HERE , BUT W HE N T HE Y CITED T HAT OLD CAS E F ROM 1 88 7 THAT D EALT WIT H C OW HID ES A ND COW 'S E ARS I T HI NK I T W AS COUNTERPRODUCTIVE T O THE IR PRODUCTIV E BECAUSE FEES ARE THE VERY THING THAT A RE B EI NG A SSESSED IN T HI S C ASE. THEY MAY CALL THEM S UR CH ARGE S OR COSTS BUT C OSTS ARE WHE N YOU A WARD THE P RE VAILIN G P ARTY FOR THE COSTS OF P RO SE CU TI ON , COSTS O F DEFENSE. WHAT IS BEING A SSESSE D HER E ARE NOT COSTS. WHAT B EING A SSES SED HERE ARE FEES OR T AXES.

BUT THE STATUTE THAT THEY ARE BEING ASSESSED UNDER I S 938, AND T HA T S TATU TE TIT LE I S COURT C OS TS .

YES, MA'AM.

SO HOW DO Y OU SQU AR E THAT WIT H YOUR A RG UMENT THAT T HESE ARE REALLY FEES WHEN T HE STATUTE ITSELF S AY S COU RT COSTS?

WELL , I D ON 'T NEC ES SA RILY TAKE THE 5 TH 'S P OS ITIO N T HA T YOU SHOULD GO B ACK TO T HA T 1 87 CASE BUT THEY DO , AND T HA T I S WHY WE ARE HER E AND T HA T 1 87 CASE DEFINES F EE S , D EFIN ES COSTS , AND F EE S A ND T AX ES W HICH IT USE S T HO SE TWO TER MS TOGETHER, THOSE ARE FOR SERVICES THE GOVERNMENT RENDERS, S UC H A S DOM ES TI C VIOLENCE CRI SIS SHE LTER S T HA T IS INVOLVED IN THIS F IR ST STATUTE HERE IN 939 .0 8 I BELIEVE IT IS.

YOU AGREE WE A RE H ER E A GA IN AS WE WERE IN THE LAST CASE , THE STATU TO RY I NT ERPRET ATIO N CASE?

YES, MA'AM.

CHIEF JUSTICE: SO IF THE LEG ISLATURE I NTENDE D FOR THESE SURCHARGES TO BE ASS ESSE D AGAINST JUVENILES THE N W E SHOULD H ONOR THA T REQ UE ST . IF T HE Y D ID N'T INTEND IT , W E CAN'T IMPOSE THEM.

CORRECT.

CHIEF JUSTICE: WE'VE GOT AS YOU M EN TION ED A S J USTI CE LEW IS P OINTED OUT , O NE STA TU TE I F W E DECIDED THESE SURCHAR GES WER E FEES IS ALREADY A PRO HI BITI ON IN E XP RE SS P RO HI BITI ON I N 985.21 AGAINST ASSESSM ENT OF FEES IN A DEL INQU EN CY PROCEEDING SO YOU WOULD BE IN AND OUT ON A S TA TUTO RY C ONSTRUCTION W ITH F EE S BUT I F WE D ON'T A GREE T HA T THE S URCHARGE I S A FEE THE N TEL L US THE N EX T , YOU R NEX T S TATUTORY ARG UM EN T WHI CH , A S I UNDERSTAND IT , I S THA T A GAIN MAYBE IT IS THE OOSIT E O F O R FOR YOU IT B EN EFIT S T HA T THE -- THESE ARE GEN ER AL SURCHARGES FOUND IN 9 38 , N OT I N T HE DEL INQU ENCY S TA TUTE , A ND THAT A LTHO UG H 9 38.0 3 SPECIFICALLY REFERS TO A DELINQUENCY A CT , 9 38 .0 8 A ND 085 DO NOT. SO THEY COULDN'T HAVE INT EN DED FOR IT TO B E A LICA BL E I N A DEL INQUENCY PROCEEDING UNLESS THEY EXPRESSLY S TATE D IT. I S THAT THE ALT ER NA TI VE STATUTORY CONSTRUCTION ARGUMENT?

WE HAVE S EVER AL FOL LOW- UP ARGUMENTS, YOUR HONOR, AND BEFORE I FOR GE T I S EE T HE CLOCK S TARTED OUT A T 2 0 B UT I HAD ASKED TO RESERVE F IV E.

CHIEF JUSTICE: A Y EL LOW LIGHT WILL COME ON A T 5 .

IF YOU WILL REMIN D M E.

CHIEF JUSTICE: UNLESS YOUARE IN THE MIDDLE OF SOM E BRILLIANT ANSWER THAT WE C AN 'T INT ERRUPT YOU ON.

YOUR HONOR, I THINK TO LOOK AT T HE L EG IS LATI VE INT EN T HER E IS THE KEY AS YOU S AID , A ND JUDGE SHA RP O F T HE 5TH HAV E P OINTED OUT T HI S WOULD OPE N UP A PAN DO RA 'S BOX O F N OT O NLY THESE COSTS BUT O TH ER C OSTS , FINES, SUR CH AR GES AND S O F OR TH AND SO I THINK T HA T FIRST J UDGE SHA RP 'S ARG UM EN T WHEN YOU LOOK IN THE DEFIN ITIONS IT IS NOT ENOUGH TO SIM PLY L OOK AT THE DEFINITION FOR A DELINQUENT ACT AND SAY, HEY, THIS IS THE S AME THING A S A LAW VIOLA TI ON . SHE SAID THAT T HE DEFINITIONS SHOULD BE CON FINE D T O C HA PTER 985. THAT'S THE FIRST A RGUMENT OF HERS IN HER CON CURR IN G O R DISSENTING OPINION AND SAY THAT.

WELL, THE STA TU TE 9 38 .0 8 TALKS A BO UT I MP OSED F OR A VIOLATION OF 984 .0 3 , WHI CH I S PRETTY BROAD L AN GUAGE. IT DOESN'T SAY A C RI MI NA L CONVICTION OR ANYTHING LIKE THAT. ANY VIO LATI ON , SO I M EA N UND ER ANY DEF INITION O F V IO LA TION O F 784.03 IT SEEMS LIK E YOU R CLIENT FULFILL S T HA T.

IF YOU TAK E T HA T , A T J US T THA T FACE V ALUE AND D ON'T REA D ANY SUR ROUNDING FACTS A ND DON'T LOOK AT THE STATU TE T HA T D EALS WITH THE MONEY T HAT COMES FROM THA T P AR TI CU LA R COSTS WHICH I WOULD LIKE TO DO IN JUST A MOMENT , THE N Y OU COULD READ THAT THAT WAY. THAT'S CORRECT. BUT I THINK T HAT O NCE Y OU L OO K AT THE OVERALL L EGIS LA TIVE WORDING HERE, AND, I N FAC T , I F YOU G O ON T O 9 38.0 85 , Y OU W IL L SEE THA T THOSE TWO S TATU TES WE ARE DEALING WITH TODAY ARE N'T EVEN WORDED THE SAME.

BUT THEY B OTH T ALK A BO UT A VIOLATION OF 7 84.0 3.

CORRECT, YOUR HONOR, BUT THE ONE T HAT C AM E LAT ER I S 085 AND THAT ONE G OE S O N T O READ IF I CAN FIND I T H ERE. IT GOES ON T O R EA D T HA T - -

PAYMENT OF T HE SUR CHAR GE SHALL BE A CONDITION O F PROBATION, COMMUNITY CONTROL OR ANY OTH ER C OU RT -O RD ERED SUPER VISION WHICH DOESN'T LIMIT THAT TO CRIMI NAL PROCEEDINGS.

IT GOES ON TO READ THE FUNDS CREDITED TO THE T RUST FUND CONSIST OF . LET ME BACK UP JUS T A B IT . THEY TALK A BOUT I N . 08 5 T HE Y TALK ABOUT NOT J US T ASSES SI NG COSTS BUT THEY TALK ABO UT FOUND G UI LT Y . I DON'T HAVE THAT S TATUTE IN FRONT OF ME BUT T HEY T AL K ABOUT FOUND GUILTY. YOU ARE NEVER FOUND GUILTY IN THE JUVENILE JUSTICE SYSTEM. THAT'S THE FIRST CLUE I N . 085 THE ONE THA T D EALS W ITH R AP E SHELTERS. YOU ARE N EVER FOUND GUILTY. THE TERMINOLOGY GUILT Y IS J US T NOT IN THE JUVENILE SYS TE M S O THAT'S THE F IRST CLU E ON THE ONE THA T CAM E AFTER T HE LAS T IN TIME AND THE S TA TE I N T HE 5 TH MAKE A BIG DEA L ABOUT THE FACT THAT THE LAST IN TIME SHOULD PREVAIL. THE LAST IN TIME I N THESE T WO STATUTES GOES A HEAD A ND FLESHES OUT THE LAW V IO LA TI ON TO SAY THIS IF Y OU P LEAD GUILTY OR NO CON TEST O R Y OU ARE FOUND GUILTY IT NEVER S AYS FOUND GUILTY OR FOUND T O HAV E COMMITTED A DELINQUENT ACT. I THINK IT IS A LS O INS TRUC TI VE TO GO AHEAD AND LOOK AT W HA T THE MONEY IS USED FOR I N B OT H OF THESE TWO C OSTS . 938.08 FOR THE D OM ES TI C VIOLENCE STATES THAT $115 OF THE $ 20 1 C OL LE CT ED SHA LL ONL Y BE USED TO PAY COUNTIE S F OR COSTS OF A DU LT JAI L . NOTHI NG FOR J UVEN IL ES H ER E UNDER 7 41 .2 83 . THAT STATUTE IN TUR N W HEN YOU LOOK AT 8 41 .283 W HI CH I S THE ONE THAT DEALS WITH THIS M ONEY WE ARE TRYING TO RAI SE H ER E I T SAYS IF A PERSON I S ADJUDICATED GUILTY. NEVER MEN TION S DEL IN QU EN T AND YOU DON'T U SE THAT P HRASE I N JUVENILE, O F A CRIME , D OM ESTI C V IOLENCE, THE C OU RT SHA LL ORDER FIVE DAYS IN THE COUNTY JAIL. AGAIN, NONE OF THIS M ONEY G OES TO THE JUVENILE JUSTICE SYSTEM. WHY W OULD WE BE A SSES SING I T AGAINST JUVENILES IF WE LOOK AT THE BIG PIC TURE HERE IN T HE LEGISLATURE'S WORDING? IF YOU LOOK A T 938 .0 85 T O SEE WHE RE ITS M ONEY G OES , $ 15 0 GOES TOWARD RAP E C RISI S SHELTERS P UR SUANT T O 7 94.0 56 . IF YOU LOOK AT T HA T S TATUTE I T TELLS US HELPFUL INF ORMATION. FUNDS CREDITED TO THE T RUST FUND CONSIST OF A DD IT IO NA L COURT A SSESSMENT IN EAC H C AS E IN WHICH A DEFENDANT, WE D ON'T USE THAT WORD IN THE JUVENIL E SYSTEM. > > I S I T P AR T O F Y OU R A RG UM EN T THAT THESE COSTS, F EE S , SURCHARGES SHOULD NOT BE ASS ESSED AGAINST A J UV EN IL E BECAUSE A JUVENILE DO ES N OT - - THE JUV ENILE S YS TEM DOE SN 'T BENEFIT FROM T HESE F UN DS ?

THAT'S A S LI GH TER A RGUM ENT , YOUR HONOR, TO THE MAI N ARGUMENT, WHICH IS THAT WE LOOK AT THE SE F OL LOW-UP STATUTES THAT I JUST R EA D FRO M BECAUSE THEY ARE PART OF T HE SE P ROGRAMS. THIS IS PART OF THE LEGISLATURE'S INTENT. WHAT IS THIS MONEY F OR ? HOW IS IT BEING USED A ND W HE N IT SAYS FUNDS C RE DI TED TO T HE TRUST FUND CONSIST O F M ONEY I N WHICH A D EF EN DANT PLE AD S GUILTY OR NO CON TEST O R I S FOUND GUILTY O F , T HE Y A RE TELLING US WHERE THAT M ONEY I S COMING FROM IN ANOTHER SET O F WORDS. THEY ARE SAYING THIS M ON EY THAT WE ARE SEEKING TO A LY AGAINST THE J UV EN IL E , T HI S MONEY, THIS FUNDING COMES F RO M A ND THIS IS VER Y C LE AR THAT IT I S COMING FROM ADU LT S. SO I T HINK , Y ES , T O A NS WE R Y OUR QUE ST IO N , B UT I T HINK THAT'S A S UB SI DIAR Y R ATIO NA LE TO THE MAI N O NE .

I'M MORE INTERESTE D , I GUESS, IN Y OU R A RGUM EN T THA T UNDER 985 .2 21 A J UVEN IL E CANNOT BE A SS ES SE D . THE TERM THEY U SE D I N T HAT STATUTE IS COURT FEES AND WITNESS FEES , I B EL IEVE , AND IT SEEMS TO ME THAT OVER THE YEARS THE D ISTRICT C OURTS O F AEAL HAVE BASICAL LY SAI D THAT , U SE T HI S S TATU TE T O S AY THA T YOU C AN NOT I MP OS E C OSTS AGAINST JUVENILES , E XC EP T UNDER 9 38.0 3 , W HERE T HE L EGISLATURE SPE CIFI CALLY INCLUDED J UV ENIL E PRO CE EDIN GS . S O I W OU LD A SS UM E THA T Y OU ARE AGREEING WITH THE D IS TR IC T COURT'S ASS ES SM EN T T HAT T HAT'S HOW 985 .221 S HOUL D B E R ED ?

YES, YOUR H ON OR .

SO , I GUE SS T O S OR T O F C IRCLE B AC K T O W HERE W E STARTED IS HOW D OE S T HI S C OS T STATUTE, THE STATUTE THA T TALKS ABOUT COSTS AND T HE STATUTE THAT USE S T HE T ERM FEES, HOW CAN W E I NT ERPR ET THESE COSTS A S FEE S ?

I T HI NK B Y U SING THE 5 TH 'S O WN CITAT IO N AGAIN ST I T AND B Y G OING --

SO WE ARE GOING B AC K TO T HE 1 800 CASE AGAIN?

I S T HA T CAS E C ITED I N Y OU R BRIEF?

YES, SIR, I BELIEVE I T IS.

I DIDN'T SEE IT A NY WH ER E A T LEAST IN THE TABLE OF C ONTE NTS.

OH, I 'M SOR RY. IT WOULD HAVE B EE N W IT HI N THE Q UOTE FROM THE CASE.

SO YOU D IDN'T CITE THAT CASE IN YOUR BRIEF?

I M AY NOT HAVE , YO UR HON OR.

AND YOU HAVEN'T PROVIDED A NOTICE OF S UP PL EMENTA L AUTHORITY ON THAT CASE?

NO.

TO THE STATE?

AND LET ME A DD THA T W E D ID SULY A SULEMENTAL AUTHORITY ON A STATUTORY CHANGE AND I HOPE YOU A LL GOT THAT. I APO LOGIZE FOR I T B EING L AT E LAST WEEK. WE OVE RN IG HTED IT. I FOU ND OUT T HA T MIS S D AVEN PORT DID NOT RECEIVE IT , AND I APO LOGIZE FOR T HAT , B UT YOU ALL HOPEFULLY H AVE . > > CHIEF JUS TI CE : C IRCLIN G BACK TO JUSTI CE L EWIS ' QUESTION . YOU HAVE THE P RO HIBITI ON AGAINST ASSES SM ENT O F C OURT FEE S. SO TELL ME WHAT I S T HE N TRADITIONALLY UNDERSTOOD IN THE JUVENILE SYSTE M T HA T IS NOT ALLOWED TO B E ASS ES SE D ?

WELL , YOUR HONOR , WHE N T HE ATTORNEY GENERAL ARGUED THAT THERE ARE NO COS TS , T HE RE I S NO C OST SEC TION O R W HATEVER IN THE JUVENILE CHAPTER, W E W OU LD RESPECTFULLY SUBMIT THERE IS , AND THE THINGS THAT THEY ALLOWED IN THE J UV ENIL E S YS TE M IN TERMS OF COSTS W ER E C OSTS FOR RES ID EN TIAL H OU SING AT $ 5 A DAY, A ND COS TS F OR SUPERVISION OF THE DEPARTMENT AT $ 1 A D AY . YOU SEE T HE R ES TITUTI ON STATUTE THAT IS W ITHI N C HA PT ER 9 85. IN ALL OF THESE P ROVI SI ON S , WHEN THEY TALK ABOUT C OSTS I N 985, THEY A RE D EALING W IT H REIMBURSING THE STA TE FOR A CTUAL COSTS THAT HAV E B EE N ENCUM BERED BY P ROSE CU TI NG O R DEFENDING THAT CHILD A ND T HE Y PUT I N SPECIAL P RO TE CTIV E LANGUAGE FOR THE FACT T HAT CHILDREN ARE CHILDREN A ND THEY DON'T HAVE THE E AR NING CAPACITY OF ADULT S A ND FOR T HE FACT THAT PARENTS ARE GOING TO BE OFTEN T IM ES CALLE D U PO N T O COME TO BAT FOR T HE C HILD . SO THE S TATE IS I NCOR RE CT W HE N T HEY SAY T HERE A RE N O C OS TS I N 985. THERE ARE.

CHIEF JUSTICE: AGAIN MAYBE I'M NOT SURE I GOT A N A NS WER TO MY QUESTION. THEN WHAT -- T HIS H AS B EEN IN EFFECT SINCE 199 0. WHAT THINGS AR E NOT ASSES SE D AGAINST JUVENILES AS FA R A S COURT FEES THA T A RE ASS ESSE D AGAINST A DULT S ? > > IF YOU T AK E THE DEF IN ITION OF FEES T HA T T HE 5TH CIT ED I N ITS S LG , THE N F EE S WOU LD B E THINGS FOR S ERVI CE S FOR T HING S THAT TAXES WOULD G O F OR , SERVICES ARE OFFERED BY T HE GOVERNMENT.

CHIEF JUSTICE: WELL, AGAIN , LET'S BE CON CR ET E. USUALLY A COST - - T HE C OS T T O PROSECUTE.WHAT IS IT T HAT A JUV ENIL E ISNOT ASSESSED THAT A N ADULT I S ASSESSED?

A D OMES TI C VIOLE NC E SHE LTER , A RAPE C RISI S S HE LTER , U SE O F SERVICES THAT GOVERNMENTS ARE OFFERED THAT ARE NOT COSTS THAT ARE ENCOUNTERED BEC AU SEYOU WERE PRO SE CUTING T HA T JUVENILE. THOSE ARE SER VICES THA T A RE O FFERED NOT J US T T O T HA T J UVENILE. THEY ARE OFFER ED T O T HE SOCIETY AND THAT'S W HAT A F EE OR A TAX GOE S F OR .

ARE THE COS TS - - ARE T HE OTHER COS TS U ND ER 938 , T HA T' S COURT COSTS, I K NO W THERE A RE OTHER COS TS DIS PERS ED I N OTH ER STATU TES BUT 9 38 I S A COU RT C OST STATUTE ITSELF. ARE ALL OF THE OTH ER S , I TEMS OF C OS TS U NDER 9 38 A LS O IMPOSED O N J UV ENIL ES ?

SHOULD THEY B E O R --.

CHIEF JUSTICE: NO, ARE THEY? WHAT IS THE T IM E S TATU S , I S T HE JUV ENILE GET TI NG T AX ED A LL OF THESE OTHER 9 38 - -

T HR OU GHOUT T HE STATE OF FLORIDA, YOUR HONOR, I AM NO LONGER IN THE JUVENILE DIVISION AND I D ON'T KNOW IN PRACTICE WHAT IS BEING ASSESSED. OUR POSITION IS THA T N OTHING SHOULD BE ASSESSED NMS I T I S SPECIFICALLY MAKES IT ALICABLE TO JUVENILES .

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL.

I'M SORRY I C AN 'T A NS WER THE O VERA LL Q UE ST IO N.

CHIEF JUSTICE: YOU DID ASK ME TO REMIND Y OU IF Y OU ARE I N YOUR REBUTTAL A ND YOU ARE IN YOUR REBUTTAL.

T HA NK Y OU , YO UR H ONOR. BASICALLY TO SUM UP , W E W OULD SUGGEST TO THIS COURT THAT WHEN THERE IS A GAP IN T HE RULES OR THE STATUTES WE SHOULDN'T JUST JUMP OVE R T O THE C RI MI NA L STA TU TE S O R THE RULES AND IMPORT T HO SE W ITHO UT SPECIFI C LANGUAGE FROM THE LEGISLATURE.ALL OF THE LEGISLATIVE CLUES THAT WE HAV E H ER E G O A GA INST THESE COS TS BEI NG A SS ESSE D W HEN WE LOO K INT O W HE RE T HE MONIES ARE GOING AND WE WOULD ASK THIS COU RT T O ANS WE R THE Q UESTION IN THE N EGATIVE. THANK YOU.

CHIEF JUSTICE: THANK YOU .

MAY IT PLEASE THE C OURT. MY NAME IS K RI S D ACHB P OV ERTY A ND - - D AVEN PORT A ND I REPRESENT THE STATE OFFLORIDA.I THINK WE NEED TO LOOK AT THE PLAIN LANGUAGE OF THE S TA TUTEAND WHEN YOU LOOK AT THE PLA IN LANGUAGE OF THE STATUTE, T HI S SURCHARGE IMPOSED FOR A VIOLATION OF AMONG OTHER THINGS A B AT TE RY S TA TUTE . THE DEF INITION - -.

DO Y OU DISTI NGUISH THE DIFFERENCE BETWEEN THE DELINQUENT ACT AND A C RI MINA L ACT? > > THE D EL INQUENT ACT I S DIFFERENT THAN A FELONY O R A MISDEMEANOR, BUT A DELINQUENT ACT IS DEFINED AS A V IO LATI ON OF THE LAW .

WHERE IS T HA T D EFIN IT IO N GIV EN? BECAUSE IN 9 85 .2 01 I T SPE AK S OF A DELIN QUEN T ACT OR VIOLATION OF LAW.

RIGHT. AND THEY HAVE THE S AME DEFINITION FOR BOTH.

WHERE IS THE DEF IN IT IO N FOR DELINQUENT ACT?

I N T HA T NUMBE R 5 8 O F T HE DEFINITIONAL STATUTE . IT D EFINES A VIO LA TION O F LAW OR A D EL IN QU ENT A CT AS T HE SAME THING. THEY ARE T HE E QU IV AL EN T .

IN THE J UV EN ILE S TATUTE I T SAYS THAT?

WHERE THEY D EFINE WHAT A DELINQUENT ACT IS. STATED IN M Y BRI EF . IT IS N UMBER 5 8.

YOU ARE TALKING A BOUT U ND ER CHAPTER 985 ?

YES, WHI CH G OV ER NS DELINQUENCY AND T HEY CALL A DELINQUENT ACT A VIOLATION O F THE LAW. THEY HAVE THE SAME D EF INITION FOR BOTH OF THOSE THINGS.

IN THE P OW ERS O F T HI S P OSITION THAT IS E XP RESS ED I N 1885 IT SPEAK S O F R ESTI TU TION , COSTS O F SUPERVISION , C OSTS O F T REATMENT PROGRAM CARE, IT SPEAKS OF ALL OTH ER C OS TS AND EXPENSES THA T C AN B E AWA RDED AGAINST THE CHI LD O R I N MOS T OF THESE CASES THE P AR EN T END S UP PAYING IT.

R IG HT .

WHERE IS T HERE I N 985 AN E XPRESSLY G IVING THE COURT THE POWER TO, IN A DD ITION TO ALL OF THOSE OTHER THINGS THAT T HE COURT IS EXPRESSLY A LL OWED TO DO, TO A WARD THE C OS TS UND ER 935 ? OR 9 3 , E XCUS E M E.

UNDER 985 .2 1 W HI CH I S T HE POWERS OF THE D ISPO SI TION O R THAT YOU ARE R EF ERRING TO , I T SAYS PROBATION MUS T I NCLUDE A PENALTY COMPONENT SUC H AS RESTITUTION AND M ONEY AND THE N THEY GO T HROUGH A B UNCH O F OTHER THINGS AND THEN T HE Y S AY OR OTHER N ON RESIDE NT IA L PUN ISHMENT AROPRIATE TO THE OFFENSE AND THEN YOU HAVE 938.08 DEFINING A S ANCTIO N FOR A VIO LATION OF T HE S TA TUTE THAT HE V IOLA TE D HER E A ND THEN THERE IS A SURCHARGE I MPOSED FOR THAT S O ULT IMAT EL Y I T FALLS UNDER THAT LANGUAGE WHICH IS A C AT CH-A LL. IT IS A R EA L B RO AD P RO VI SI ON .

YOU ARE SAYIN G I T I S M ANDATORY SO EVEN IF IT IS N OT AROPRIATE TO THE OFFENSE THE JUDGE H AS TO I MPOSE IT?

IT IS A M ANDATO RY SUR CHAR GE UNDER THE LANGUAGE OF THE STATUTE .

CHIEF JUST ICE: WHAT DOES THIS BROAD STATEMENT IN 9 85 .2 1 THAT P RO HIBITS THE A SSESSM ENT OF THE COURT FEES IN A DELINQUENCY PROCEEDING , WHA T DO THOSE REFER T O ?

H ON ES TL Y , J UDGE , I CAN 'T FIND ANYTHING.I WOULD S AY THAT A COU RT F EE IS DEFINED IN T HE S TA TUTE . IT IS A STATUTO RY T ER M O F ART . I COULD N' T F IND A NY TH ING IN THE S TATUTE THAT I S DEF INED A S A COURT FEE.

CHIEF JUSTICE: SO YOU ARE TELLING ME THAT THE LEGISLATURE, IN A STATUTE THAT'S BEEN IN EFFECT SINCE 1990 THAT MAK ES A B ROAD PRO HIBITION AGAINST ASS ES SMEN T OF COURT FEES WHICH , O F C OURSE , WOULD GO ALONG WITH WHAT W E HEARD IN THE LAS T ORA L ARGUMENT THAT IS AS WE W ER E TRYING TO M AKE THIS I NT O A R EHABILITATIVE , PUN IT IVE SYSTEM, THAT B RO AD LY P RO HIBI TS THE ASSESSMENT. THAT IT IS M EA NINGLE SS B ECAU SE THERE AREN'T ANY COURT F EE S THAT WOULD BE ASSESSED , ANYWAY?

I'M SAY IN G T HA T B Y H AVIN G THAT STATUTE, I F T HE Y I MP OS E SOME KIND OF A FEE A ND D EF IN E IT AS A COURT FEE I N THE STATUTE, THAT WOULDN'T A LY TO JUVENILES, BECAUSE OF T HA T STATUTE .

IS THERE A F ILING FEE ?

THERE HAS B EEN N OTHI NG , S O THEY PUT A STATUTE IN EFFECT IN 1 99 0 THA T H AD N O M EANI NG , AND THERE WERE NO FEES T HA T WOULD HAVE BEEN ASSESSED AGAINST THEM ANYWAY?

I WOULD SUBMIT THAT A COU RT FEE, THERE IS NOTHING IN T HE STATUTE THAT DEFINES SPECIFICALLY AS A C OURT FEE. IF T HE RE W AS SUC H A T HING I T WOULD B E THINGS L IK E A FIL ING FEE TYPE OF THING. THIS IS A S URCHAR GE U NDER THE COURT C OSTS S TA TU TE .

THAT WAS M Y QUE STION A BOUT THE FILING FEE.

RIGHT.

YOU DON 'T C HA RGE F OR FIL IN G A NY KIND O F D EL IN QUEN CY PETITION OR D EP EN DENC Y PETITION.

THAT W OULD SEEM TO FAL L UNDER A COURT F EE K IN D OF A THEORY VERSUS THIS IS SPECIFICALLY DEFINED AS A COURT COST OR S UR CH AR GE.

BUT AS WE STA RT L OO KING A T T HAT THINGS THAT A RE A SS ESSE D AND PEOPLE HAVE TO START PAYING WE CAN C AL L A MUL E A T HOROUGHBRED BUT THAT DOESN'T MAKE IT S O. IS T HE N OM EN CL ATUR E R EALL Y THAT CRITICAL OR DO YOU L OOK TO SEE WHAT IT I S THA T SEE MS TO BE THAT Y OU R O OON EN T I S SUGGESTING? WE REALLY HAVE TO ANA LY ZE W HA T IT IS FOR AND HOW I T R ELATES OR IS THAT JUST T OT AL LY A NONARGUMENT HERE? WE JUST ARE WE C LE AR LY JUS T USING THESE WORDS?

I THINK THA T THESE A RE CREATURES OF STATUTE. THE C OSTS ARE C RE ATURES O F STATUTE. THE STATUTE THA T SAY S N O COU RT FEES ARE IMPOSED I N JUV ENILE CASES IS A S PECI FIC S TATUTE THAT SAYS THAT. THERE IS N O B RO AD P OLIC Y O R CONSTITUTIONAL REASON THAT JUVENILES CAN'T HAVE COURT FEES. IT IS PUR ELY A STATUTORY LANGUAGE.

BUT IS THERE NOT ROO M F OR DISCUSSION OF WHAT F EE S , C OU RT F EES? IS THERE NO ROOM F OR DISCUSSION ON THAT?

I THINK IF T HE L EG IS LATU RE WOULD D EFIN E A SUR CH ARGE , I F THEY WOULD HAVE CALLED IT A COURT FEE W E WOULD H AVE T O ABIDE BY THAT DEFINITION.

WHAT IF THE Y HAD ASSESSE D A $50 AND SAY THI S IS NOT A COURT FEE BUT THIS IS A S URCHARGE?

I THINK IF THEY DEFINE I T AS NOT A COURT F EE T HE N THI S STA TUTE SAYING C OURT FEE S DON'T ALY.

NO MATTER WHAT IT IS?

NO MAT TE R WHAT I T IS. I THINK IT IS IMPOSSIBL E T O CATEGORIZE THIS.

CHIEF JUSTICE: YOU SAID THERE I S N O P OLIC Y BEH IN D W HA T THE L EGISLA TU RE M AY H AVE WANTED TO DO , AND I'M HOP EF UL THIS THE - - T HA T T HE L EG ISLATURE AS WAS AGA IN ARG UED STRONGLY BY THE S TATE IN THE L AS T O RA L ARG UM EN T , HAS A VER Y D IF FE RE NT PUR POSE FOR JUVENILES, WHICH I S REHABILITATION NOT P UNIS HMEN T . Y OU TAKE A 1 5 O R 1 6-YE AR -O LD AND YOU I MPOS E W HATEVE R Y OU CALL THEM, COSTS, FEE S , S URCHARGES , THA T M OUNT S U P INTO THE HUNDREDS O R , Y OU KNO W , POSSIBLY THOUSANDS, A ND YOU DON'T GIVE THEM THE CAP AC IT Y TO HOLD A JOB O R T O E AR N IT B ACK AND WHAT YOU H AV E ESSENTIALLY DONE I S P UNIS HE D THAT JUV EN ILE. S O W HY ISN'T I T A BET TE R READING J US T A S J UDGE S HA RP 'S READING OF THE ENTIR E STATUTORY ARE SCHEME T HA T UNLESS THE L EG IS LA TU RE SPECIFICALLY M AK ES A S URCH AR GE A LICABLE TO JUV EN IL ES W E CANNOT READ IT IN , AND T HE Y DID I T AND T HAT' S W HY I N 938.03 THEY SPECIFI CA LL Y REF ER TO A DEL INQU EN T A CT. SO THEY K NOW H OW T O S AY I T WHEN THEY WANT TO SAY IT , A ND I THINK T HA T W HEN Y OU H AV E I N C OMBINATION WITH 985 .2 1 , W HE N YOU HAV E 9 38.0 3 THA T S PECIFICALLY REFERS TO DELIN QUENT ACTS , T HAT F OR T HE LEGISLATURE TO HAVE SAID , WELL , WE ARE JUST B RO AD LY D ON E , U SE A DIFFERENT LANGUAGE IN T HI S STATUTE IS JUST READING INT O SOMETHING, SOMETHING THA T IS NOT CONSISTENT WITH THE OVERALL LEGISLATIVE P UR PO SE O F THE J UVEN ILE JUSTICE SCHEME. SO HOW DO YOU G ET A ROUN D THE ' 03 PART , 9 3. 03 I N THA T T HE Y SPECIFICALLY REFERRED TO DELINQUENT ACT?

LET ME C LA RI FY T HAT. I MISS SPOKE W HE N I S AI D N O COURT FEE. IT IS NOT A POLICY. IT IS NOT A CONSTITUTIONAL. THERE IS N O C ON ST IT UTIONAL BAR ON I MPOSING THESE S O IT IS N OT A CONSTITUTIONAL THING THA T SAYS JUVENILES CAN'T H AVE COURT FEES. IT IS PURELY A S TATU TO RY POLICY. IT IS WRITTEN OUT I N T HE STATUTE WHICH IS WHY I AM SAYING WE NEED TO L OO K A T T HE STA TUTORY L ANGUAGE T O F IN D WHAT THAT EXACTLY IS. AS FAR AS T HEY DID SPECIFICALLY SET OUT DELINQUENT ACT IN 9 38 .0 3. I MEAN , I T I S VER Y SPECIFIC. D ID THEY H AVE T O D O T HA T IS THE QUESTION HERE.DID THEY HAVE TO USE T HO SE M AGIC WORDS FOR I T T O A LY T O JUVENILES AND IT IS OUR ARGUMENT THEY D IDN'T HAVE TO SAY THAT. THEY COULD ALSO P HR ASE I T THE WAY THEY PHR ASED . 08 W HICH I S ANYBODY WHO VIO LATE S T HESE STATUTES AND IT IS CLEAR THAT A JUVENILE V IOLA TES T HE STATUTE, THAT T HA T P LAIN LANGUAGE IS SUFFICIENT. THEY DIDN'T H AVE TO S AY DELINQUENT ACT.

UNDER 938 , ARE JUV EN ILES ASSESSED THE OTH ER COS TS T HA T ARE I ND IC ATED U ND ER 0 1 O R 0 4 O R HAVE T HE C OU RT S O R I BELIEVE THAT MOST O F THE DISTRICT COURTS HAVE HEL D T HA T JUV ENILES ARE NOT A SS ES SE D THOSE F EES A ND T HE C AS E LAW B ASICALLY SAYS THAT Y OU C AN D O IT UNDER 0 3 BEC AU SE THE S TATUTE SPECIFICALLY SAYS YOU CAN DO IT.

I'M NOT AWA RE, YOUR HONOR , OF A LINE OF CASES SAYIN G THA T COSTS DON'T ALY T O JUV ENIL ES . THIS I S KIN D O F A U NIQU E LIN E IS THIS DOM ES TI C VIO LENC E AND THE RATE S TATUTE A ND THE N DISTRICT COURTS HAVE ALL AFFIRMED ALYIN G T HESE T O JUVENILES.

BUT THIS PARTI CULA R S EC TI ON IN THEIR DISCUSSION OF 0 3 THERE ARE SOME CAS ES O UT T HERE WHERE J UV ENILES ACTUA LL Y A EALED THE I MP OS ITIO N OF COSTS UNDER 03 , A ND I N DISCUSSING THAT THE COU RT S B ASICALLY HAVE SAI D THA T W E ARE ALL OWING T HI S PAR TI CU LA R C OST B EC AUSE O F THA T S PECI FI C LANGUAGE.

RIGHT . A ND THOSE WERE E ASY ONE S BEC AUSE THERE W AS S PE CIFIC LANGUAGE. THEY HAD TO A LY TO JUV ENILES. IT IS VERY CLEAR. THIS ONE IS LES S C LEAR B ECAUSE IT DOESN'T HAVE THAT SPECIFIC LANGUAGE, BUT THE SPECI FI C LANGUAGE IT DOES HAVE , I T I S OUR POSITION IT DOE S ALY T O JUVENILES BECAUSE THEY VIOLATETHE STATUTE.

DO Y OU KNOW ACTUA LL Y I N PRACTICALITY W HETH ER O R N OT ANY OF THESE O TH ER C OSTS U ND ER 938 ARE B EING A SS ESSE D A GA INST JUVENILES?

IN PRA CT IC ALIT Y , I F YOU LOOK AT THE RECORD IN T HI S CASE AT 2 2 T O 2 4 IS T HE D ISPOSITION ORDER. THIS JUVENILE DIDN'T JUST GET THESE COS TS. SHE HAD A LOT O F O THER C OSTS AS WELL. SHE HAD T HE C RI ME S COMPENSATION TRUST FUND W HICH IS THE ONE THAT S PE CIFI CA LL Y INCLUDES THE DELINQUEN T ACT . THAT ONE WAS O BV IOUS. SHE HAS $ 3 T O T HE T EAM C OU RT . $2 TO LAW E NFOR CEMENT EDUCATION. SHE HAD $ 40 - -

WHAT STATUTE ARE THO SE COSTS UNDER?

THOSE ARE UND ER D IF FE RENT COSTS. LET'S SEE, THE TEAM C OU RT C OMES UNDER 9 38 .1 9 WHI CH I S PHRASED V ERY SIMILAR T O . 08 5 WHICH IS A NY BODY W HO PLE AD S O R IS CONVICTED OF A V IO LATI ON O F CRIMINAL LAW. G ETS THAT $ 3 T EAM C OURT ASSESSMENT. SHE GOT THAT. $2 TO LAW E NF ORCEME NT OFFICER. A NOTHER 938 C OST. 938.15. IN ADDITION TO THE 938 .0 1 COS TS YOU CAN IMP OSE T HAT FOR LAW ENFORCEMENT EDU CATION. 938.01 READS EVERY P ER SON CONVI CTED OF V IO LA TING A CRIMINAL STATUTE, WHI CH JUVENILES VIO LATE C RI MINAL STATUTES. SO THEY GOT T HA T C OST. SHE HAS A $ 40 P UB LIC D EF ENDE R ALICATION FEE. THAT IS UND ER 2 7. 52 W HICH I S SEEKI NG SERVICES O F THE P UBLIC DEFENDER. AGAIN, NO L ANGUAGE IN T HE RE ABOUT --. > > CHIEF JUSTICE: YOU KNOW , AGAIN LOOKING AT THIS. SHE G OT $ 140 I N ATT ORNEY' S FEES, SO THA T' S N OT U P H ER E AND EVEN THOUGH IT SAY S T HE RE SHALL BE NO FEE S A SS ESSE D . SO --

THAT'S NOT B EI NG A EA LED. SO I T S EE MS T HA T JUS T LOOKING AT THIS DIS PO SI TI ON O RDER , JUVENILES AREN'T IMMUNE TO THESE COSTS. THEY DO GET HIT WITH COSTS. PROBABLY NOT AS MANY A S ADU LT S DO, BUT THE Y D O G ET H IT WIT H COSTS AND THE QUE ST ION HERE I S DO THEY FALL UNDER THESE STATUTES?

AGAIN JUST SO WE A RE C LEAR , YOU AGR EE IN THI S CAS E , T HI S IS A AR EN TLY J UV ENILE WAS I T A S CHOOL FIGHT I N SHE W AS A 11TH GRADER , SHE PUN CH ED ANOTHER STUDENT, BROKE THE NODES. SO IT WAS N' T - - N OS E. IT W AS N' T RAP E O R D OMES TI C VIOLENCE, SO E VE N T HOUGH T HERE IS NO R EL AT IO NS HI P T HOSE ARE AUTOMATICALLY UNDER YOU R VIEW ASSESSED BECAUSE SHE WAS CONVICTED OF O R ADJ UDIC ATED NOL O TO SIMPLE B AT TE RY?

BECAUSE SHE VIO LA TE D THE B ATTERY STATUTE. THESE STATUTES, THE S UR CH AR GE STATUTE S AREN'T LIMITED T O SEXUAL BATTERY TO FUBD T HI S - - FUND THIS R AP E PRO GR AM . C RIMES OF V IO LE NCE , A NY TIME YOU COMMIT A CRIME OF V IO LENC E YOU HELP TO PAY THE SOC IE TA L COSTS OF THAT.

CHIEF JUSTICE: DID THE JUDGE IMPOSE IT BECAUSE HE O R S HE T HOUGHT H E O R SHE W AS OBLIGATED TO DO I T O R B ECAU SE IN THE D ISCR ET IONARY WAY THOUGHT I T W AS ARO PR IATE A S PART OF T HE O VE R AL L S ANCT IO N THA T WAS B EI NG --

ON THIS RECORD I T IS N OT CLEAR.THEY SAY, JUDGE, WE HAV E THA T STANDING OBJECTION TO T HESE COSTS.IT IS SOMETHING THAT HAS C OME UP IN A L OT O F C ASES I N T HA T CIRCUIT AND THE JUDGE JUST IMPOSED THEM AND SAID , YES , W E RECOGNIZE YOUR STANDING OBJECTION.THEY DIDN'T G ET INTO THE GROUNDS OR THE ARGUMENTS. IT SEEMS LIKE THA T' S A W EL L ESTABLI SHED PUBLIC DEFENDE R OBJECTS AND THE JUDGE I MPOSES THEM, BUT THESE ARE M AN DATO RY COSTS AND I DON'T BELIEVE HE HAD THE D IS CRET IO N T O N OT IMPOSE THEM HER E B EC AUSE U NDER THE PLAIN LANGUAGE OF THE STATUTE IT IS MANDATORY THE Y IMPOSE THAT.

CHIEF JUSTICE: HOW LONG WAS SHE ON PROBATION F OR ?

I'M NOT SUR E.

CHIEF JUSTICE: IN OTHERWORDS SHE COULDN'T COMPLETE HER P RO BATION U NT IL S HE P AID OFF ALL OF THE D IF FERE NT C OSTS?

IT I S ONE O F T HOSE DEALS. THERE WAS LIKE $ 90 0 I N R ESTITUTION WAS THE BIG THING AND 75 HOURS O F C OM MU NI TY SERVICE SO IT IS ONE OF THOSE WHERE AS SOON AS THEY FINISHES THAT SHE COULD PETITION AND B E RELEASED.

CHIEF JUSTICE: IS THERE A HIERARCHY SO THA T S HE P AY S OFF THE R ESTITUTION FIRST OR I S THERE A --

THE WAY THEY SET UP THE RES TITUTION AND UNDER THE STATUTE, PARENTS ARE SPECIFICALLY HELD L IABLE FOR RESTITUTION WHICH ISN'T THE CASE WITH COSTS. AT LEAST THERE IS N O STA TUTE.

CHIEF JUSTICE: THAT DOE SN 'T SEEM FAIR IF YOU ARO ACH T HI S BY, AGAIN , TRY IN G T O H EL P T HE JUV ENILE TO MAK E RIG HT ON THEIR WRONG YOU WOULD THINK THAT YOU WOULD WANT THEM TO PAY T HE R ES TITU TI ON N OT T HE PARENT.

BUT THE PARENT C AN B E H EL D LIABLE. THE JUVENILE IS, T OO . THERE IS N O S PE CIFI C HIE RA RC HY S ET OUT IN THE ORD ER B UT T HEY HAVE TO PAY T HE COSTS W IT HI N 60 DAYS V ER SUS A P AYME NT SCH EDULE SET OUT FOR THE $ 90 0 IN RES TI TUTION AND I T WAS A T THE HEARING THE J UDGE ASKED THE FATHER HOW MUCH H E C OULD AFFORD A MONTH SO THERE I S SOME INDICATION THAT, I GUESS , IN THAT SENSE T HE Y WANT THE VICTIM TO BE COMPENSATED WHETHER IT IS THE JUVENILE I S GOING TO WORK OR NOT . SO THAT MIGHT BE THE P OLIC Y WHY THE JUDGES DO THAT. I'M NOT S UR E . AS FAR AS THE OTHER A RG UM ENTS ABOUT . 08 5 S AYIN G T HA T I T D OE S TAL K ABOUT P LEADIN G G UILTY O R N OLO OR F OU ND GUI LTY. THERE I S A STATUTE T HA T S AY S JUVENILES AREN'T FOUND GUILTY AND THEY ARE NOT C ON VI CT ED , BUT WHEN YOU LOOK AT THE LANGUAGE OF THAT STATUTE IT SAYS EXCEPT AS THE TER M CONVICTION IS USED IN C HAPTER 322 AND HERE' S THE I MPORTANT LANGUAGE, EXCEPT FOR USE IN A SUB SEQUENT P ROCEEDING UNDER THIS CHAPTER, AND A DJ UDIC ATIO N OF DELIN QU ENCY B Y A C OU RT PER CHI LD I S C OM MI TTED T HE DELINQUENT ACT SHALL NOT B E DEEMED A C ONVI CTION OR S HALL THE CHILD B E F OU ND G UILTY. IT IS O UR POS IT IO N THA T T HE DISPOSITION IS A S UB SE QU EN T PROCEEDING UNDER THIS CHAPTER SO THAT'S WHY . 08 5 H AS A LIT TLE M OR E NAR RO W L ANGU AG E THAN . 08 W HICH D OE SN'T E VE R T ALK ABOUT B EI NG FOUND G UILTY OR PLEADING N OL O O R AN YT HI NG LIKE THAT VIO LATION. IF THE COURT HAS N O OTH ER QUESTIONS WE WOULD A SK T HA T THE CER TIFIED QUESTION BE ANSWERED IN THE AFFIRMATIVE. THANK YOU.

CHIEF JUSTICE: THANK YOU . REBUTTAL?

THANK YOU, YOUR H ON ORS.

CHIEF JUSTICE: YOU ARE NOT CHALLENGING THE $ 14 0 I N ATTORNEY FEES?

YOUR HONOR, I HAVE TO DEFEND THAT PUBLIC DEFEN DER FEE AND SO I WOU LD D IRECT YOU ALL TO 9 85 .2 03 W HI CH I S I N T HE J UVENILE JUSTICE CHAPTER 985.203 I BELIEVE IT IS. I DON'T HAVE IT IN FRONT OF M E AND THAT COVERS T HE PUBLI C DEFENDER FEE AND ALSO CHA PT ER 27 WHICH TALKS I N M OR E GEN ERAL TERMS AND THEN THERE A RE ALS O SUBSECTIONS WHICH TALK ABOUT PARENTS AND SO FORTH ON T HESE FEES. SO I THINK THAT TO C OR RECT - -.

CHIEF JUSTICE: CAN A PARENT PAY THESE? ARE THESE SOMETHING THAT A PARENT CAN PAY S O I F Y OU C AN HAVE A PARENT THAT H AS M ONEY THEY CAN GO AHE AD A ND J US T $350 LIKE THAT , T HE P AR EN T H AS NO MONEY --

I CITED T HE O NE CAS E AND I T IS NOT V ERY R ICH I N F ACTS BUT I CITED THE ONE CAS E O UT O F THE 1ST WHERE THE PARENT WAS HELD IN CONTEMP T F OR N OT PAYING IN THE BRIEF FOR N OT PAY ING THE I THINK I T WAS DM SENIOR WAS THE INITIAL S OF T HE CASE . S O I B ELIE VE T HA T , YES , AND THAT'S WHY I ARGUED IN THE BRIEF IT CAN ACTUA LLY B E COUNTERPRODUCTIVE IF YOU'VE GOT A PARENT BATTERED BY THE CHILD THEN YOU CAN A CTUALL Y POTENTIALLY SEE THAT PARENT IN CONTEMPT OF COURT F OR N OT PAYING THE COSTS . WHEN THE CHILD WAS A T FAU LT T O BEGIN WITH. TO GO BACK AND A NS WER J USTI CE QUINCE'S EARLIER Q UE STIONS I CAN POINT OUT T HAT THE JUVENILE ASS ES SMENT S HE LT ER S UNDER 938 .1 7 , T HO SE A RE NOT T O BE ASS ES SE D AGA IN ST J UVENILES LOOKING AT THOSE THAT ARE I N 938 B ECAUSE T HE LEGISLA TURE TOOK OUT THE LANGUAG E THAT HAD EARLIER A EARED T HAT DID SAY D ELINQUENTS OR A DJ UD ICATED DELINQUENTS, SO FORTH. THEY TOOK THAT O UT AND THE C ASE O F E J T ALKS A BO UT T HA T WHICH I SUP PL IE D IN THE SULEMENTAL AUTHORITY TO T HIS COURT AND ALSO T HE T EA M C OURT S IN 9 38 .1 9 , T HOSE W ER E T AKEN O UT AND I THI NK I N 2 004. > > CHIEF JUSTICE: TAKEN O UT AS --

TAKEN OUT OF T HE J UV ENIL E R EALM BY THE LEGISLATURE WHEN THE LEGISLATURE TOOK OUT THE WORDS THAT REFERRED TO DELINQUENCIES OR DEL INQU ENT ACT.IF YOU GO BACK AND LOOK.

CHIEF JUSTICE: SO THEY CAN OR CANNOT B E A SS ESSED F EE S BY THE COURT?

CANNOT B E.

CHIEF JUSTICE: A ND WHAT'S THE LANGUAGE THAT S AY S T HAT?

BECAUSE THE LEGISLA TU REWENT IN A ND S PECI FICA LLY T OO K OUT PREEXISTING LANGUAG E T HAT DID SAY A DJUD ICATED DELINQUENTS OR FOU ND T O HAV E COMMITTED --

THERE IS NO LAN GUAGE O F PROHIBITION IN THIS STATUTE.

THERE I S N O L AN GU AGE T HA T PROHIBITS, CORRECT. IT IS BY THE L EGISLATURE TAKING IT OUT A FF IR MATI VELY .

WHAT YOU ARE SAYING IS THAT THERE IS A DISTRIC T COU RT C ASE WHICH HAS C ONST RU ED THE T AKIN G OUT OF T HE L ANGU AG E A S A N IMP LIED PROHI BI TI ON.

EJ DID , Y ES , YOUR H ON OR .

WHAT DISTRICT IS THAT?

THAT IS THE 2 ND , I B EL IE VE , 2005. THEY DEAL WITH 9 38.1 7 W HICH WAS MOVED O VE R T O 9 39 .1 85 .

CHIEF JUSTICE: THERE I S MANY, WE HAVE MAN Y T AG S I N THIS C AS E. MOST OF THEM OUT O F T HE 5 TH DISTRIC T. ARE YOU I NVOLVED IN ALL O F THOSE OTHER CASES?

NO , YO UR HONOR .

CHIEF JUSTICE: I JUST WANTED TO KNOW IF THEY WERE ALL INVOLVED IN THE EXACT S AM E STATUTE OR IF THEY HAVE OTH ER -- I'M SEEING A N OD FRO M M IS S DAVENPORT.

YOU HAVE OTHER S H EA DED Y OUR WAY.

CHIEF JUSTICE: WE HAVE STAYED THEM AND IT WOULD B E IMPORTANT IF THEY HAD OTHER ISSUES MAYBE FOR THAT T O B E , YOU KNOW, I F THERE W ER E O TH ER STATUTES OTHER THAN THE SE TWO S TATUTES . MISS DAV ENPORT HAS S TA TED T HEY ARE ALL THE S AM E S TATUTE . SO THANK YOU FOR THAT.

BUT I W OULD S UB MIT , M AD AM CHIEF JUSTICE, THA T T HE RE WIL L BE LIKEL Y O TH ER COSTS C OM ING YOUR WAY IF THIS C OU RT DOE S NOT SEND A CLEAR SIGNA L. WHEN THE LEGISLATURE IS CLEAR THAT IT S HOUL D P ER TA IN T O JUVENILES , T HE N T HA T' S C LE AR THAT WE S HO UL D. WHEN IT IS CLEAR T HAT I T HAS TAKEN OUT THE REFER EN CES T O JUVENILE DELINQUENCY AS T HE E . J. CASE DEALT WITH ONE SIT UATION AND THERE ARE OTHERS THEN IT IS CLEAR THAT W AS THEIR INTENT TO TAKE IT OUT. WHEN THEY ARE NOT CLEAR EITHER WAY I SUBMIT THEY CAN BE C LE AR WHEN THEY WANT TO BE. IF THIS C OURT A LLOW S THO SE CASES, THOSE INSTANCES , THO SE COSTS WHERE IT IS U NC LE AR T O BE A SS ESSED O N A ONE -B Y-ON E SITUATION THEN I WOULD SUGGEST THAT THERE IS NOT G OING TO BE A CLEAR SIGNAL TO JUD GE S THROUGHOUT THE STATE TO T RI AL COUNSEL OR TO THE LEGISLATURE AS TO WHAT C OR RECTIONS THEY NEED TO M AKE IN THE STATUTE AND I SEE T HA T I'M O VE R. THANK YOU.

CHIEF JUSTICE: THANK Y OUVERY MUCH.THE COURT WILL BE IN REC ES S UNTIL 9:00 A.M . T OMORROW MORNING.

THE MARSHAL: P LEASE RISE.