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ANNUAL REPORT OF THE ATTORNEY GENERAL102

and treatments by physicians. Hospitals properly respect the confidentialityattributed to such records by public and statutory policy.

Public policy holds that the right of privacy includes the right to live freefrom unwarranted intrusion. See Harms v. Miami Daily News, Inc., Fla. 3 D.GA. "1961, 127 So.2d 715. A limitation on the right of privacy is the puhlicatioll of 'public records. The right of I?rivacy does not prohibit the publication of infor­mation that is of public or general interest. However, the phrase "public orgeneral interest" does not mean mere curiosity. Harms v. Miami Daily News,Inc., supra.

In short, the general policy by hospitals is that the hospital clinical recordsbe kept from inspection by curiosity seekers. Therefore, public hospital clinicalrecords which are not specifically deemed confidential by law may be publicrecords; however, inspection of t/lese records should be limited to interestedpersons, i.e., qualified persons, and not curiosity seekers. In keeping \\ ith thepolicy set forth in §458.16, supra, the aforementioned records should not bereleased to anyone other than the patient, his guardian, curator, or personalrepresentative, except upon the written authorization of the patient. For furtherdiscussion see §458.16, F.S.A.

All costs authorized by sta~te in criminal or traffic proceedingsmust be assessed against a solvent defendant upon conviction. A courtcan also impose the payment of costs on a solvent defendant as acondition of probation without adjudicating such person guilty of thecrime of which he stood charged, and such a requirement to paycosts would not be violative of Art. I, §19, State Const.

COURT COSTS

MUST BE ASSESSED ON SOLVENT DEFENDANT IF CONVICTED

'fo: David F. Patterson, Justice of the Peace, District 2, Clearwater

Prepared by: A. S. Johnston, Assiytant Attorney General

QUESTIONS:

1. Does §939.01, F. S., make mandatory the assessing of costs inall criminal cases?

2. Are traffic offenses under state law included within the term"crime" as used in §939.0l?

3. In counties where fee system lias been abolished, what itemsconstitute taxable costs referred to in §939.01?

4. When a defendant is bound over for 'trial, are the costs of thecommitting magistrate (such as witness fees and mileage) to beassessed against defendant upon conviction?

5. In event costs are taxed and collected, to whom are they paidand to what fund?

6. Article I, §19, State Const. 1968, provides that no personcharged with crime shall be compelled to pay costs before a judgmentof conviction has become final. May costs be taxed against a de­fendant who is placed on probation without a formal adjudicationof guilt (adjudication withheld)?

7. In the assessing of costs, is the court required to itemize suchcosts in aiming at the amount to be paid?

,. ANNUAL REPORT OF THE ATTORNEY GENERAL 103

. To have a better comprehensive understanding of the answers given toyour propounded questions, a short look into the history of the assessment ofcourt costs in criminal cases must be taken. The holding of a convicted defendantto the payment of some of the costs involved in the state's. prosecution of him\vas unknown at the common law, and not until the passage of statutes for thepayment of certain of such costs was he held responsible for their paymentupon his conviction. Costs properly chargeable agaillst a defendant on convictiongenerally do not include the general expense of maintaining the system of courtsand the administration of justice, all of which is an ordinary burden of govern­ment. Under this principle the costs of jurors' or other expenses in connectionwith jurors are not chargeable. Likewise, expenses of the trial judge are con­sidered part of government expense and not chargeable as costs. As a generalrule, fees and mileage of government witnesses are held taxable costs of prosecu­tion against convicted defendants. See 14 Am. Jur. Costs §100, and 20 C.J.S.Costs §435. Florida faced the question of costs to a convicted defendant earlyin its statehood whtln §939.01, F. S., was passed, stating that "[i]n all casesof conviction for cdme the costs of prosecution shall be inCluded and enteredup in the judgment rendered against the convicted person." This statute wasenacted in 1846 and has remained unchanged to date.

Your first question asks if this statute is then mandatory and if costs shallbe assessed in all cases of conviction. The statute specifically says that all costs"shall" be assessed. The interpretation given "shall" when used in statutes, in theabsence of an indication to the contrary, is that such word means "mandatory."30 Fla. JUT. Statutes §§7, 8; McDonald v. Roland, Fla. 1953,65 So.2d 12; Fla. Tal­lbw Corp. v. Bryan, Fla. 1970, 237 So.2d 308. I recognize that there is a line ofdecisions holding that the word "shall" when it applies to courts or to the ad­ministration of court procedures by courts might be given a "permissive" inter­pretation rather than the "mandatory" meaning. However, when §939.01, F. S.,is read in pari TTUlteria with other provisions of Ch. 939, !lnd in particular with§§939.05 and 939.06, the only hypothesis must be that the assessment of suchcosts is mandatory. It must also be kept in mind that such convicted defendantmust be solvent. Insolvent 'defendants are discharged without payment of costsunder authority of §939.05, F. S.

Your second question asks whether or not a violation of a state traffic lawwould constitute a conviction of a "crime," contemplated by §939.0l. My answermust be understood to mean that a violation of a state traffic law is not in andof itself criminal, but that the enforcement of such traffic laws is criminal innature. The determining factor in the differentiation between a crime and atort is the manner of enforcement. Crimes are enforced by the sovereign; atort, by a personal individual enforcement, 9 Fla. JUT. Criminal Law §2; Cityof Miami v. Gilbert, Fla. 3 D,C.A. 1958, 102 So.2d 818. Traffic cases thereforewould be subject to the taxation of costs.

Your third question asks what items are taxable as costs. The specific itemswhich can be assessed as costs in criminal prosecutions vary from state to statethroughout our nation. A general treatise on this matter can be found in 65 A.L.R.2d 854. Florida has specifically responded in cases of Lindsey v. Dykes,· Fla.1937, 175 So. 792; City of Miami v. Gilbert, supra; and State v. Parkerson, 27Fla. Supp. 25 (Circuit Court, 1965, Dade County).

In the past several years Florida has been shifting from fee officl's to abudget type operation. In many counties the sheriffs office and the justice of thepeace offices. no longer operate strictly on fees. The budget theory· of operation,however, does not terminate the aiIocation of costs in these offices to the func­tions as performed therein.

l The legislature, in the passage of §5(1), Ch. 57-368, Laws of Florida, abolish­i', ing the fee system as a method of compensation for sheriffs, with certain excep­

tions, provided 'that, "[a]ll fees, commissions and other remuneration provided'" by law'for services other than criminal .. :' shall be charged by the sheriff to the

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AGO 064-66AGO 054-221;

AGO 069-54 andAGO 069-55.

ANNUAL REPORT OF THE ATTORNEY GENERAL

county. In AGO 057-335, a predecessor in office held that in light of Ch. 57-,368,sheriff's arrest fees could not properly be assessed as a part of the court costsin criminal cases. This opinion is not followed. Attached hereto please finda copy of unnumbered Attorney General's Opinion, dated Jan. 16, 1964, ad­dressed to the Honorable A. W. Nichols, Jr., Clerk Circuit Court, Putnam County.The effect of this opinion countennanded the effect of the 1957 opinion 057-'335, and is the procedure now followed throul!,hout the state; I am assured b}'.the auditor general's office that the procedure outlined in the unnumbered 1964opinion is the correct procedure to be followed in the taxation of costs. I amalso of .the opinion that all other fees allowable by statute to constables, justicesof the peace, prosecuting attorneys and the like are also allowable taxation ofcost against a convicted defendant regardless of whether such county office ison a fee or budgetary system of financing its operation when the same becometaxable in the same manner and under the same conditions as sheriff's fees.

I further call to your attention the following Attorney General Opinionsholding fees as being assessable in specific instances:

Court ReportersExpert Witness FeesOne Dollar Assessment for

Police Academy by virtue of §23.102, F. S.

104

In listing the above, they are not to be cons.trued as the only instanceswherein court costs are allowed to be assessed but, to the contrary, are includedonly as being indicative of the type costs provided for.

Responding to question 4, it is clear by the wording of the statute thatcosts are only assessed upon conviction. This then means that if you have trialjurisdiction of the charges, and the defendant is brought to trial and convicted,you should assess proper court costs. In the event you are serving as a commit­ting rnagistrate,however, then any costs involved should be passed on to thetrial court to be assessed against the defendant, if and when his conviction occurs,becomes final and he is determined solvent by the court.

In answer to question 5, all funds collected for assessed costs are paid intothe registry of the county treasury. Attorney General Opinion, Oct. 10, 1927,Biennial Report of the Attorney General, 1927-1928, p. 376, and AttorneyGeneral Opinion, May 21, 1935, Biennial Report of the Attorney General, 19.35­1936, p. 276. Whether the remitting office is a fee office or a budget-type officehas no effect on the payment of these costs into the county treasury or the fineand forfeiture fund of the county, as the case may be. The type of office opera­tion would only require different procedures in the disbursement of funds backto the remitting office.

Question 6 relates to the constitutionality of requiring a payment' of costswithout an adjudication of guilt. Article I, §19, State Const. 1968, provides thata person charged with a crime cannot be compelled to pay costs before a judg­ment of conviction has become final. This constitutional provision should notin any way prohibit the assessing of court costs against a convicted, solventdefendant when the adjudication of guilt is withheld and the defendant placedon probation. Attorney General Opinion 056-186. It is recognized that the citedopinion is prior in time to the adoption of the new state constitution containingthe prohibition of requiring pa}'!llent of costs prior to the finality of judgment;However, the new constitution has no effect on the provisions of §948.01, F. S.,or Rule 1.790 Criminal Procedure, which provide that persons found guilty byjury, or pleading guilty to a criminal charge, can, in the discretion of the court,when probation is warranted, be placed on probation with or without adjudica­tion of guilt actually being entered. .,

It has been construed that there is a clear distinction between "sentence;"which must be preceded by an adjudication of guilt, and "conditions of proba- .

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Where property owned by a municipality is leased by it to anincorporated baseball club for its exclusive use, occupancy, controland possession as exhibition and training facilities, to induce said lesseeto establish the municipality' as the "Southern home" of the baseballclub, said property is not exempt from ad valorem taxation, for the1971 tax year, pursuant to §196.191(2), F. S. 1969. Pursuant to §ll,Ch. 71-133 (§196.199, F. S.), the aforementioned property is subject toad valorem taxation, for the 1972 tax year, as the functions performedand purposes served by such lessee do not meet the express statutoryqualifications contained in §§196.199 and 196.012(5), F. S.. dfectiv('December 31, 1971, and are not incidental to a primary governmental

TAXATION

MUNICIPALLY OWNED PROPERTY LEASED TO PRIVATECORPORATION NOT EXEMPT

Does a private cqrporate baseball club, which leases certainproperties from a municipality, qualify for an ad valorem propertytax exemption pursuant to §196.191, F. S. 1969, when the property isleased for exclusive use, occupancy, control and possession in connec­tion with such profit-making venture for exhibition and training fa­cilities?

tion," which can be imposed independently of an adjudication of guilt andimposition or pronouncement of sentence. It must be recognized that it ispossible for a trial court to withhold an adjudication of guilt and place thedefendant on probation, but still require the defendant to pay an assessmentof costs as a condition to probation. See 24 GJ.S. Crimiool Law §1571(8), andthe recent case of State v. Williams, Fla. 2 D.C.A. 1970, 237 So.2d 69.

In C.J.S., supra, at page 475, it is said:

Costs. The purpose of requiring payment of costs as a conditionof probation is not punishment of the offender but reimbursementof the state. Where payment of costs may be made a condition of pro­bation, the amount thereof is not governed by the ordinary rules fortaxing costs imposed as part of a sentence, but is limited to reimburse­ment for the public expenses incurred in the apprehension, examina­tion, trial, and probation of accused.

which statement of law substantiates the ruling of Judge Liles in State v.Williams,supra, holding that such distinction between a sentence and conditionsof probation is clearly recognized by the Florida courts. I therefore hold thata court can impose the payment of costs on a solvent defendant as a conditionof probation, without adjudicating such person guilty of the crime of which hestood charged, and that such requirement to pay costs would not be violativeof Art. I, §19, State Const.

Your last question asks if costs need to be itemized. All assessments ofcosts against a solvent, convicted defendant are required to be itemized. Section37.15, F. S.; Lindsey v. Dykes, supra.

To: ]. Ed Straughn, Executive Director, Department of Revenue, Tallahassee.

Prepared by: W. E. Bishop, Jr., Assistant Attorney General

QUESTION:

SUMMARY:.,'