Michigan Advisory Opinions September 16, 1998: AGO 6995 (September 16, 1998)

AGO 6995.

You have asked two questions concerning the authority of a county prosecutor to require a criminal defendant to pay "local costs."

Your first question asks whether a prosecutor is authorized by law to require a criminal defendant to pay costs as a condition for reducing or dismissing criminal charges pending against the defendant.

Criminal prosecutions are governed by the Michigan Code of Criminal Procedure (Code), 1927 PA 175, MCL 760.1 et seq; MSA 28.841 et seq. The Code, at Chapter XI, MCL 771.1 et seq; MSA 28.1131 et seq, authorizes the imposition of costs in criminal cases. If a defendant has been found guilty, and if it appears to the satisfaction of the court that the defendant is an appropriate candidate, the court may place the defendant on probation. Section 1. As a condition of probation, the court may require the defendant to pay costs. Section 3(2)(c). Such costs, however, are limited to expenses specifically incurred in prosecuting the defendant, in providing legal assistance to the defendant, and in providing probation supervision of the defendant. Section 3(4).

The type of costs which may be imposed against a convicted defendant under section 3(4), supra, was most recently considered in People v Humphreys, 221 Mich App 443, 452; 561 NW2d 868 (1997), where the court stated:

Our Supreme Court interpreted [this statute] in People v Teasdale, 335 Mich 1, 4-5; 55 NW2d 149 (1952), and concluded that its purpose was to grant to the court discretionary authority to require a probationer to reimburse the public for expenditures reasonably and properly incurred in connection with the case. . . .

We conclude that the trial court properly ordered defendant to pay those costs relating to both the prosecution and the defense of his case.

In People v Teasdale, 335 Mich 1, 6; 55 NW2d 149 (1952), the court enumerated those section 3(4) costs whose reimbursement could be ordered, which include:

[S]uch an amount as would reimburse the public for expenses, direct and indirect, incurred in the apprehension, examination, trial and probationary oversight of such probationer. The language of the statute necessarily implies that the expenses in question must have been incurred in connection with the particular case in which the order of probation is made, and, hence, excludes expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public irrespective of specific violations of the law.

In addition, the Code authorizes a court, in connection with the imposition of a conditional sentence, to order a defendant to pay a fine and the costs of prosecution. Chapter IX, MCL 769.3; MSA 28.1075. The validity of this statute was recognized in two cases, although in each case the trial court imposed a jail sentence rather than a fine, together with costs, resulting in the Court of Appeals finding that the sentences were invalid. See, People v Tims, 127 Mich App 564; 339 NW2d 488 (1983); and People v Watts, 133 Mich App 80; 348 NW2d 39 lv den 419 Mich 938 (1984).

It is clear that the Code authorizes courts to impose limited costs, including the costs of prosecution and defense, on a criminal defendant after that person has been convicted. Indeed, the Legislature has specifically included costs of prosecution in the penalty provisions of several statutes.(fn1) The imposition of costs in criminal prosecutions is not dependent upon whether the accused is convicted of the original charge or a reduced charge. There is, however, no authority for a Michigan court to impose any costs on a criminal defendant where he or she is not convicted of a crime.

There is likewise no statutory or case law authority for prosecutors to impose any costs, "local" or otherwise, upon a criminal defendant as a condition for reducing or dismissing criminal charges pending against the defendant. The reason for this is clear. The use of such a power by a prosecutor could give rise to the unseemly appearance that justice was for sale upon an accused's payment of an agreed amount of money, in return for the reduction or dismissal of criminal charges pending against the accused.

This is not to suggest that a prosecutor cannot engage in plea bargaining with a criminal defendant, including negotiations as to what conditions a convicted defendant's sentence might include. The Michigan Supreme Court has acknowledged the prevalence of plea bargaining, its constitutionality, and the reality that a defendant's sentence is the primary focus of such bargaining. People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). The result of any plea bargain must, however, still be sanctioned by a court, and the sentence ultimately entered must be imposed by a judge.

It is my opinion, therefore, that a prosecutor is not authorized by law to require a criminal defendant to pay costs as a condition for reducing or dismissing criminal charges pending against the defendant. A court may, however, when sentencing a convicted defendant, impose such costs as are permitted by statute, including those permissible costs agreed to between the prosecutor and the defendant as part of a plea bargain.

Your second question asks if the answer to the first question is yes, must such prosecutor-required costs be deposited in the county general fund. In light of my answer to your first question, it is not necessary to answer your second question.

FRANK J. KELLEY

Attorney General

1. See, e.g., MCL 257.625(11); MSA 9.2325(11), dealing with driving while intoxicated, and MCL 324.2157; MSA 13A.2157; MCL 324.40118; MSA 13A.40118; MCL 324.43560; MSA 13A.43560; MCL 324.47327; MSA 13A.47327; MCL 324.73110(5); MSA 13A.73110(5); and MCL 324.74206; MSA 13A.74206, all dealing with violations of the Natural Resources and Environmental Protection Act, MCL 324.101 et seq; MSA 13A.101 et seq.