### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

LINDA WEINREBER BARKER
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 21

- 2575

[ November 23, 2022 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County ; William L. Roby , Judge; L.T. Case No. 562019CF000896A

.

Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

M AY
, J.

The defendant appeals a restitution order entered after she pleaded no

contest to fraudulent use of a credit card a nd exploitation of an elderly

person . She argues the trial court erred in : ( 1) determining restitution

because the evidence did not support the amount awarded ; and (2) assessing a surcharge when no fines were assessed. We agree with her on issue two. We therefore affirm in part and reverse in part.

The victim asked her neighbor ( the defendant) to help with bills while she was traveling. Th e victim gave the d efendant permission to use certain

checks and credit cards. When she returned, t he victim n oticed irregular activity on two of her accounts. The victim reported the activity to the police

.

The State charged, and the defendant pleaded no contest to, fraudulent use of a credit card and exploitation of an elderly adult. The court sentenced the defendant to twenty

- four months’ proba tion and ordered her to pay restitution.2 A t the restitution hearing, t he State argued the d efendant should pay

for two checks : one made out to the IRS for $2,000 ; and another made out to “P.D. Green” for $1,005.71. The victim testified the d efendant dr afted

the checks without her knowledge and consent

. N either check bore the

victim’s handwriting o r signature.

The d efendant responded she drafted the checks with the victim’s permission for the victim ’s benefit

. The court ordered restitution for $3,00 5.71 but did not assess any fines.

The d efendant now argues the State failed to prove the checks paid for

items benefiting the d efendant. She also argues t he e vidence support ed only a speculation that the d efendant had wrongfully spent the money. The State responds it proved the d efendant wrote the two unauthorized

checks and the victim did not benefit from those payments

.

We review restitution orders for an abuse of discretion. Davis v. State

, 244 So. 3d 374, 377 (Fla. 4th DCA 2018) (citing Sori ano v. State , 968 So. 2d 112, 114 (Fla. 4th DCA 2007)).

A restitution order must be supported by competent substantial

evidence. Davis , 244 So. 3d at 377. C ompetent substantial evidence must be more than mere speculation. Soriano v. State, 968 So. 2d 1 12, 114 (Fla. 4th DCA 2007) (quoting Glaubius v. State , 688 So. 2d 913, 916 (Fla. 1997) )

. The State bears the burden of proving the amount of loss by a preponderance of the evidence. § 775.089(7 )(c)

, Fla. Stat. (2021).

The defendant relies on Henry v. State , 840 So. 2d 1170, 1171 (Fla. 4th DCA 2003) . There, the defendant pled guilty to one of the same charges, exploitation of an elderly person. But t he State relied only on “documentary evidence consisting of financial data, including credit card records, a spreadsheet summarizing financial transactions, and other

documents.” Id

. The State did not call any witnesses. The trial court granted the State’s requested restitution amount. Id.

We re versed because the docum entary evidence did not establish the impropriety of e ach expenditure . We remanded the case for “the trial court to make sufficient findings or for the State to provide evidence substantiating the amount it seeks.” Id.

Here, unlike Henry

, competent subs tantial evidence support s the

restitution award. T he victim testified the d efendant drafted the checks

without her consent and the payments were of no benefit to her

. The State3 introduced copies of checks showing the d efendant’s handwriting and signature. We therefore affirm the restitution order.

Next, the defendant argues the trial court erred in applying a five percent surcharge

, pursuant to section 938.04, Florida Statutes (2021)

, when the trial court did not impo se a fine. The State responds the

d efendant failed to preserve th e issue

.

We have de novo review. Brewster v. State, 25 So. 3d 99, 101 (Fla. 4th DCA 2018).

A n improper cost s assessment claim may be preserved in a Rule 3.800(b) motion. Bartolone v. Sta te , 327 So. 3d 331, 335 (Fla. 4th DCA 2021) (citing Anderson v. State , 229 So. 3d 383, 386 (Fla. 4th DCA 2017) )

. Here, the d efendant raised th e surcharge assessment in a Rule 3.800(b)(2)

motion . By doing so, she preserved th e issue.

Section 938.04, Florida Statutes (20 21 )

, provides for the imposition of a five percent surcharge when a fine or cost is imposed under section 318.14(10) , Florida Statutes (2021)

. 1 A trial court must pronounce each fine, cost, and discretionary fee during a sentencing hearing to comply with due process. Jackson v. State , 296 So. 3d 549, 553 (Fla. 1st DCA 2020) (citing Osterhoudt v. State , 214 So. 3d 550, 551 (Fla. 2017)).

Here , t he trial court orally pronounced costs and fees but did not impose a fine. Indeed, there are no mandatory fines for the third

- degree

felonies charged in this case. See § 775.083, Fla. Stat. (2021)

. Yet

, the probation order included a mandatory five perc ent surcharge. The surcharge was incorrectly assessed

.

We therefore reverse the surcharge and remand the case to the trial court to strike it from the probation order.

Affirmed in part; Reversed in part.

G ERBER and A RTAU , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Section 318.14, Florida Statutes (2021)

, relates to noncriminal traffic

infractions

, and does not apply to the d efendant ’s charges

.