STATE оf Utah, Plaintiff and Appellee, v. Todd Allen PARKER, Defendant and Appellant.
No. 920732-CA.
Court of Appeals of Utah.
March 16, 1994.
872 P.2d 1041
Jan Graham, State Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen. (argued), Salt Lake City, for appellee.
Before BILLINGS, GREENWOOD and DAVIS, JJ.
OPINION
BILLINGS, Presiding Judge:
Defendant Todd Allen Parker appeals the trial court‘s order denying return of money he paid to the Fremont Center, as a condition of his probation, after his conviction was reversed and vacated. We affirm. Both Judge Davis and Judge Greenwood concur in sections I. and II.A. of this opinion. However, neither Judge Davis nor Judge Greenwood concurs in section II.B. and thus, Judge Davis‘s opiniоn is the majority opinion on the return of fees.
FACTS
In September of 1990, defendant was charged with three counts of burglary. He pled not guilty and moved to suppress all evidence seized following his arrest. The trial court denied the motion to suppress, and after a bench trial, convicted him on all three counts.
Defendant was sentenced to serve one to fifteen years at the Utah State Prison concurrently and to pay a fine of $10,000, on each count. The trial judge stayed the prison sentence and placed defendant on eighteen months probation. As conditions of his probation, defendant was required to рay a fine of $800 plus a twenty-five percent surcharge, make full restitution, complete a high school education program, complete a program at Salt Lake County Mental Health, and attend the Fremont Center, a secure residential facility run by the State Department of Corrections for parolees and proba-
Defendant successfully appealed his burglary convictions. This court reversed and remanded in State v. Parker, 834 P.2d 592 (Utah App.1992), finding that the evidence supporting his convictions was obtained as the result of an unconstitutional arrest. Upon remand and pursuant to the State‘s motion, the trial court entered an order dismissing the criminal case against defendant on July 31, 1992, thereby vacating his convictions.
On August 20, 1992, twenty days after the order of dismissal, defendant filed a motion captioned “Motion for Return of Fine, Costs and Fees and Notice of Hearing.” Defendant sought reimbursement for the fees and fines he paid following his conviction. The trial court ruled,
Based upon the defendant‘s motion for return of fines, costs and fees which was heard on the dates оf September 4, 1992 and September 15, 1992, and good causes appearing; It is hereby ordered that fines shall be returned to the defendant but any money paid for rehabilitation will not be returned to the defendant.
It is from this order defendant now appeals.
The State argues as a threshold matter that this appeal should be dismissed for lack of jurisdiction. Specifically, the State claims that the original order dismissing the case against defendant was a final judgment from which defendant had ten days, under
Defendant responds that the trial court had jurisdiction over the motion under either
I. JURISDICTION
Defendant‘s motion captioned “Motion for Return of Fine, Costs and Fees and Notice of Hearing” was filed in the trial court twenty days after entry of the order of dismissal. The motion does not indicate which provision of the Utah Rules of Civil or Criminal Procedure authorizes the motion. The court‘s order, which returned the fines but denied the refund of fees paid to the Fremont Center, likewise fails to specify the procedural rule under which the court considered the motion.1
How defendant‘s motion is characterized determines this jurisdictional issue. If we treat the motion as one under
On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (7) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons [under subsection] (1) ... not more than 3 months after the judgment, order, or proceeding was entered or taken.
The fact that defendant did not label his motion a
A. Rule 60(b)(1)
This court has previously said:
In order for a party to be relieved from judgment under
Rule 60(b)(1) , the party must demonstrate not only that the judgment resulted from mistake, inadvertence, surprise, or excusable neglect, but also that the motion to set aside was timely, and that there exist issues worthy of adjudication.
Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah App.1991).
The trial court appropriately considered defendant‘s motion under subsection (1) because the order of dismissal should have dealt with defendant‘s sentence, and failure to do so was an inadvertence. See Thomas A. Paulsen Co. v. Industrial Comm‘n, 770 P.2d 125, 130 (Utah 1989) (analogizing workers’ compensation statute to
B. Rule 60(b)(7)
Alternatively, subsection (7), the residuary clause of
Two Utah cases, similar to the case at hand, havе treated motions as if they were made pursuant to
In this case, Wades’ [sic] supplemental statement of objections, though clearly mislabeled, was the functional equivalent of a
Rule 60(b) motion to set aside the judgmеnt. The statement was filed in contemplation ofRule 60(b) , and contained the same kinds of arguments and assertions one would normally expect to find in a motion to set aside the judgment. Most importantly, the trial court treated it as such a motion.
In the instant case, defendant‘s motion is captioned “Motion for Return of Fine, Costs and Fees and Notice of Hearing.” The body of the motion states:
COMES NOW the defendant above named by and through his attorney of record LISA J. REMAL, and hereby moves this court to order the return of any fines, costs and fees he paid as part of his sentence in the above-entitled case. Grounds for this motion are thаt defendant‘s conviction was overturned by the Utah Court of Appeals and his case was thereafter dismissed. It is, therefore, in the interest of justice that all fines, costs and fees paid by the defendant be returned to him.
Defendant‘s motion asserts two reasons justifying relief from the operation of the judgment: (1) his conviction was overturned, and (2) justice is best served by returning to him all fines, costs and fees. Although not properly labeled, the motion was in substance a
II. RETURN OF FEES
Defendant argues the trial court erred in refusing to return fees he was required to pay to the Fremont Center, as a condition of his probation, after his conviction was reversed on appeal, the case against him was dismissed, and his conviction was vacated. “A trial court‘s decision to grant or deny a
A. Rule 28 of the Utah Rules of Criminal Procedure
Initially, defendant claims that
If a judgment of conviction is reversed, a new trial shall be held unless otherwise specified by the appellate court. Pending a new trial or other proceeding, the defendant shall be detained, or released upon bail, or otherwise restricted as the trial court on remand determines proper. If no further trial or proceeding is to be had a defendant in custody shall be discharged, and a defendant restricted by bail or otherwise shall be released from restriction
and bail exonerated and any deposit of funds or property refunded to the proper person.
No Utah case has interpreted the portion of
A bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust. In general, an act by which a person receives the property of another, binding himself to preserve it and return it in kind. The delivery of chattels by one person to another to keep for the use of the bailor....
Money placed with a person as an earnest or security for the performance of some contract, to be forfeited if the depositor fails in his [or her] undertaking.
Black‘s Law Dictionary 438 (6th ed. 1990).
Under this definition, the money defendant paid to the Fremont Center does not qualify as a deposit. Defendant paid the money in order to participate in the program with no understanding that it would be returned. Thus,
B. Incident of Conviction5
Defendant further contends that if
The first case articulating this reasoning is United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff‘d, 478 F.2d 835 (5th Cir. 1973). There, the court ordered the return of fines which were imposed after the defendant pled guilty to criminal charges pursuant to a statute which was subsequently determined, retroactively, to be unconstitutional. In its opinion, the district court stated:
While there are no means available to compensate a person who has been imprisoned for violating a statute that is subsequently found constitutionally void and retrospectively applied, there is always a means for such a person to recoup his losses when the loss takes the form of a monetary fine.
The
Fifth Amendment prohibition against the taking of one‘s property without due process of law demands no less than the full restitution of a fine that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result, and a citizen has the right to expect as much from his [or her] government, notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution.
Lewis, 342 F.Supp. at 836 (emphasis added). Affirming on appeal, the Fifth Circuit stated: “Just as the imposition of a fine is an incident of a criminal conviction, so is the direction for repayment an incident to the vacating аnd setting aside of the conviction.” Lewis, 478 F.2d at 836 (emphasis added).
Likewise, in State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976), overruled in part on other grounds, In re Estate of Erdmann, 447 N.W.2d 356 (S.D.1989), the South Dakota Supreme Court ordered the return of fines and court costs paid by the defendant when the state statute under which he was convicted was declared unconstitutional. Agreeing with Lewis, it stated:
Respondent‘s right to obtain full relief from the consequences of his conviction should not be doubted. There is no manifest rationale for terminating his probationary status while retaining his money.... Even as the court had the right to set aside Defendant‘s conviction it had the right and the duty to set aside the resulting sentence, including the fine and court costs imposed. Once the conviction had been set aside the state was without a right to collect or retain the fine and costs and Defendant had a lawful expectation of their return. The refund was incident to the vacation of the judgment in question.
Id., 241 N.W.2d at 564 (emphasis added).
Similarly, in People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975), the Illinois Supreme Court held that the defendants could recover fines and court costs after an intervening decision, which applied retroactively, invalidated their convictions. Citing to Lewis and Piekkola, the court stated: “We are of the opinion that the money, having been received in payment of fines imposed as an incident to judgments of conviction, should be ordered refunded as an incident to the vacation of the judgments under which it was оrdered paid.” Id., 335 N.E.2d at 8 (emphasis added).
Although not using the “incident” language, the court in State v. Superior Court, 2 Ariz.App. 545, 410 P.2d 502 (1966), affirmed the refund of a fine when the conviction was overturned on appeal because
the remedy of appeal must be complete and adequate whether a bond is posted or not. On a successful appeal the person charged is entitled to all the benefits of his success.... The fine paid in lieu of bond and possibly in lieu of confinement until he could post bond and until the appeal could be perfected, is to be restored to him.
Id., 410 P.2d at 504 (emphasis added).
The incident of conviction analysis supports returning to defendant the fees he paid to the Fremont Center. Defendant was punished by the сourt when he was required as a condition of probation to be confined at the state-run Fremont Center and to pay a fee to qualify for this program. He had no choice but to abide by this term of his probation, and this part of his probation certainly had a punitive as well as a rehabilitative component. A punishment is “[a]ny fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court.” Black‘s Law Dictionary 1234 (6th ed. 1990); see People v. Stead, 845 P.2d 1156, 1159-60 (Colo.1993) (finding surcharge accompanying fine was punishment because it directly served the purposes of prevention and rehabilitаtion). The fees defendant was required to pay for his confinement at this state-run secure facility were thus incident to his conviction.
The majority relies on the fact that the fees were paid as an incident of his probation to distinguish them from the authority requiring their return as incident to his conviction. However, this is also true of fines. A person is often required to pay a fine as part of his probation yet this does not mean it is not incident to a conviction.
Furthermore, although seldom utilized, “[s]ubstantive due process guarantees that no person shall be deprived of ... property for arbitrary reasons.” Allen v. State, 100 Nev. 130, 676 P.2d 792, 794 (1984) (per curiam); accord Moreno v. State, 775 P.2d 497, 500 (Wyo.1989). The Utah Supreme Court has recently used such an apprоach in limiting governmental immunity. See generally Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) (plurality opinion). Even Justice Stewart in his dissent acknowledges that substantive due process is implicated in the case of extreme government arbitrariness. Id. at 369.
Just as Judge Davis acknowledges that due process guarantees government fairness, I conclude that refusing to return fees defendant paid to the state for his required attendance at a secure residential facility run by the Utah Department of Corrections, results in the arbitrary taking of his property. He was required to pay those fees incident to his conviction, which was subsequently vacated. The state simply has no legal basis for retaining these fees. Unlike Judge Davis, I cannot distinguish this case from the fine, costs, and surcharge cases which he acknowledges were correctly decided.
Finally, it is irrelevant under all the authority cited whether defendant is factually guilty. The fact is that his conviction has been vacated. Accordingly, defendant is now entitled to a return of those fees he was required to pay because his conviction has been vacated.7
DAVIS, Judge (concurring in part and dissenting in part):
I concur with that portion of Judge Billings‘s opinion regarding jurisdiction. However, I respectfully dissent from her determination that due process demands a return of fees that Parker paid to the Fremont Center.
Although Utah‘s statutory scheme provides for the return of bail and deposits to a defendant when a conviction is vacated,
Judge Billings relies on cases in which courts in other jurisdictions have found that due process requires a reimbursement of fines paid “incident to conviction” where the conviction is later overturned. See, e.g., United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff‘d, 478 F.2d 835 (5th Cir. 1973); State v. Superior Court, 2 Ariz.App. 545, 410 P.2d 502 (1966); People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975); State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976). She also relies on a case where the court approved refund of surcharges, which are fees paid into a general fund and for which a defendant receives no specific benefit. See People v. Floyd, 61 N.Y.2d 895, 474 N.Y.S.2d 476, 462 N.E.2d 1194 (App.1984) (mem.).
Judge Billings properly identifies fines and surcharges as “incidents of conviction” for which reimbursement is required. She then expands the concept to include fees paid to a public rehabilitation facility, reasoning that Parker “had no choice but to abide by this term of his probation.”
It is from this portion of her analysis that I dissent. I do not believe that fees paid for services received at a rehabilitation center constitute incidents of conviction requiring reimbursement because (1) such fees are part of the rehabilitative рrocess rather than punitive, and (2) Parker received a benefit for those fees.
Probation “is an act of grace by the court suspending the imposition or execution of a convicted offender‘s sentence upon prescribed conditions.”
The cases on which Judge Billings relies do not require the result reached thereby and are equally supportive of the trial court‘s ruling because fines and surcharges are primarily punitive and because a defendant does not receive or have the potential to receive a direct benefit therefrom. In this case, Parker paid the partial fees to the Fremont Center in consideration for rehabilitative and other services such as room, board, high school education courses, counseling, psychosocial services and employment experiences. Thus, such fees are better categorized as incidents of probation and rehabilitation rather than incidents of conviction.
Parker‘s need for rehabilitative services is undisputed: His attorney acknowledged at the sentencing hearing that Parker needed formal probation and vocational rehabilitation and his factual guilt is not at issue. Under these circumstances, Parker was in a position to receive a direct benefit at the Fremont Center in consideration for the partial fees he paid. Compelling the State to reimburse those fees would, in effect, unjustly enrich Parker at the State‘s expense. Justice does not require a refund of money from which Parker has either benefited or been given the opportunity to benefit. Moreover, the Fremont Center in good faith accepted Parker‘s money. In return, it rendered rehabilitative services while the conviction was still in effect and not yet overturned.
Judge Billings concedes that had Parker elected prison time rather than probation, he could not sue the State to recover compensation or damages.1 Yet by electing probation over prison time, Judge Billings would allow Parker to avail himself of a remedy not otherwise available. To my mind, this reasoning is inconsistent.
Perhaps the greatest difficulty I have with expanding the “incidents of conviction” for which the State must make the defendant whole is its potential application to almost any event that may occur as a result of a criminal conviction. For examрle, would the State be required to reimburse defendants for fees paid to private rehabilitative facilities including vocational schools and hospitals? Would the State be required to, in effect, be the insurer for such facilities? Would the State be required to reimburse the defendant
Finally, I disagree with Judge Billings‘s reliance on due рrocess as a basis for returning the fees paid to the Fremont Center for rehabilitative services. Judge Billings relies on notions of fairness and equity to support her position. See Billings opinion at 1046-47 (citing Lewis, 342 F.Supp. at 836), which addresses procedural due process). My concern is that Judge Billings‘s opinion suggests an expansion of the concept of due process whenever it is perceived that one has been treated unfairly. Just as Judge Billings believes I give an unduly restrictive reading to procedural due process, I think her view is unduly broad in this case.
In the instant case, I believe procedural due process requires that Parker be given notice and a hearing before being deprived of his property rights. See Burlett v. Holden, 835 P.2d 989, 991 (Utah App.1992) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)). Parker received notice and was heard at his sentencing hearing at which he opted to forego serving time in prison, for which he could not be reimbursed, and to instead attend the Fremont Center. In addition, Parker was heard on his Motion for Return of Fine, Costs, and Fees, and he received partial redress under that motion from the trial court. Hence, I see no violation of Parker‘s procedural due process rights.
Judge Billings appears to rely, I believe incorrectly, on substantive due process to support her conclusion that Pаrker must be refunded the fees paid the Fremont Center. As the United States Supreme Court stated recently,
“As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.
Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994) (quoting Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)). Applying substantive due process here is an unchartered area.2
I would affirm the trial court‘s order denying return of the money paid by Parker to the Fremont Center for rehabilitative services he received there.
GREENWOOD, Judge (concurring in result only with DAVIS, Judge):
I agree with Judge Davis that due process does not require the return of fees paid by defendant to the Fremont Center. However, I do not agree that procedural due process was satisfied in this case by simply providing defendant with notice and a hearing. I also do not believe that defendant‘s alleged actual guilt has any bearing on the issue presented. Because his conviction was vacated, defendant is entitled to be assumed innocent for аll purposes. In these two points, I am in disagreement with Judge Davis and agree with Judge Billings‘s analysis.
In addition to guaranteeing notice and a hearing, procedural due process invokes fairness considerations. The case referred to as seminal by Judge Billings states as follows: “The
Substantive due process, likewise, does not require compensating defendant. As Judge Billings notes, substantive due process protects against arbitrary governmental action. I do not believe that requiring defendant to attend the Fremont Center as a condition of probation could be characterized as arbitrary.