State v. WashburnState v. Washburn
- Reporters:
- ,
- Before:
- Richardson
Lead Opinion
Defendant was convicted by a jury of driving under the influence of intoxicants.
The trial court may require a convicted defendant to pay costs.
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“(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.”
Recovery of statutory witness fees is proper under
In State v. Fuller, 12 Or App 152, 504 P2d 1393, rev den (1973), aff’d sub nom Fuller v. Oregon, 417 US 40, 94 S Ct 2116, 40 L Ed 2d 642 (1974), we construed
“The state submits that the costs ‘specially incurred’ in prosecuting á defendant include the costs of providing a court-appointed counsel and the payment of investigator’s expenses. These are, in fact, the principal expenses which the state ‘specially’ incurs in prosecuting an individual defendant. The statute specifically excludes a jury fee or the costs of *160summoning jurors. In addition, most of the costs of the prosecution side of the case are excluded from consideration as costs. The ‘costs of prosecution’ specifically do not include district attorneys’ salaries, sheriffs’ salaries, jurors’ fees, police investigators, etc. See, Minutes, Criminal Law Revision Commission Meeting, May 14,1970, pp 27-30* * *” 12 Or App at 157.
The state argues that the overtime pay of the deputies was necessitated by the trial of defendant and is therefore “extraordinary witness fees” specially incurred to prosecute defendant. The overtime pay was part of the deputy sheriff’s salary under their employment contract. The overtime is paid because they are working as deputy sheriffs outside their regular duty hours. Whether the salary is paid as overtime or regular duty pay it is still part of the salary of the deputy. Characterizing it as extraordinary witness fees does not alter the fact that it is salary of sheriff’s deputies. As we said in Fuller, costs of prosecution do not include sheriffs’ salaries. A defendant could not be required to pay a portion of the salary of a deputy sheriff who testified during his regular duty hours. A deputy, by testifying in court after his regular working day, is compensated as a deputy sheriff and not as a witness. We conclude that the overtime pay is not properly a cost that can be assessed against a convicted defendant under
The judgment of conviction is affirmed and the case is remanded for entry of a judgment which excludes the costs of the deputy sheriffs’ overtime pay.
Remanded with instructions.
Dissenting Opinion
dissenting.
I dissent. A close reading of
Overtime pay for the three deputy sheriffs who testified at defendant’s trial was part and parcel *161of the “expenses specially incurred by the state in prosecuting the defendant.”
The majority relies on the fact that the overtime pay was based on a collective bargaining agreement. This, I submit, is beside the point. This expenditure was the direct result of the trial, not the collective bargaining agreement. The collective bargaining agreement was at most only the indirect cause of the extra expense. The fact remains that Lane County had to pay overtime to these three deputies. It was a part of the “expenses specially incurred by the state in prosecuting the defendant.” As the Oregon Supreme Court declared in State v. Young, 74 Or 399, 145 P 647 (1915), an unambiguous statute should not be interpreted but should be enforced according to its clear language. Accord: Whitney v. Morgan, 9 Or App 289, 497 P2d 865 (1972).