565 P.2d 1006 | Nev. | 1977
OPINION
Thomas Korby was prosecuted for supplying a controlled
The district court sentenced him to a term of eighteen months in prison, suspended imposition of that sentence and placed him on probation. As a condition of probation the court ordered Korby to reimburse Elko County for jury, witness and mileage fees in the amount of $1,310.85 incurred during the prior unsuccessful prosecution. Korby is not indigent. Whether the court possessed authority to impose that condition of probation is the issue presented for our decision.
1. We find no statute empowering the district court to order payment of jury, witness and mileage fees incurred by a county in an unsuccessful prosecution. A defendant whose trial ends without conviction is not obliged to reimburse the county for the costs of his defense.
Of course a convicted defendant may be required, as a condition of probation, to make restitution.
2. As noted, our statutes distinguish between defendants who are convicted and those who are not. This classification is noninvidious. Convicted defendants may be subject to orders contemplated by the mentioned statutes. A defendant whose trial ends without conviction is not. Here, as in Oregon, the legislature “could surely decide with objective rationality that when a defendant has been forced to submit to a criminal prosecution that does not end in conviction, he will be freed of any potential liability to reimburse the state for the costs of his
3. For the reasons expressed we direct the district court to modify the order of probation by striking therefrom the requirement that Korby reimburse Elko County for jury, witness and mileage fees incurred in the unsuccessful prosecution of him.
NRS 176.189(1): “The Court may order as a condition of probation or suspension of sentence, in appropriate circumstances, that the defendant make restitution to the person or persons named in the order, at the times and in the amounts specified in such order.”