Walden v. State

364 S.E.2d 304, 185 Ga. App. 413, 1987 Ga. App. LEXIS 2513
CourtCourt of Appeals of Georgia
DecidedDecember 4, 1987
Docket74727
StatusPublished
Cited by4 cases

This text of 364 S.E.2d 304 (Walden v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walden v. State, 364 S.E.2d 304, 185 Ga. App. 413, 1987 Ga. App. LEXIS 2513 (Ga. Ct. App. 1987).

Opinions

Carley, Judge.

Appellant was convicted and sentenced for the offense of failure to yield the right-of-way. Thereafter, judgment was also entered against her for court costs in the amount of $382.20. This figure was an aggregate of the following elements: $100 for bailiffs; $150 for 6 jurors; $63 for witnesses; and, $69. [2] 0 for services of the clerk of the trial court. Appellant appeals from the judgment for court costs.

1. “The costs of a prosecution, except the fees of his own witnesses, shall not be demanded of a defendant until after trial and conviction. If convicted, judgment may be entered against the defendant for all costs accruing in the committing and trial courts and by any officer pending the prosecution. The judgment shall be a lien from the date of his arrest on all the property of the defendant. The clerk shall issue an execution on the judgment against the property.” (Emphasis supplied.) OCGA § 17-11-1. There would appear to be two elements which comprise recoverable “costs” pursuant to OCGA § 17-11-1. There are those “costs accruing in the committing and trial courts” and, in addition, there are those “costs accruing . . . by any officer pending the prosecution.” (Emphasis supplied.) If recoverable “costs” were limited to only those costs accruing by officers of the court, then witness fees would not be recoverable. However, witness fees are clearly recoverable from a convicted criminal defendant as “costs.” See generally Brown v. State, 86 Ga. 375 (12 SE 649) (1890); State v. Everett, 93 Ga. 575 (20 SE 73) (1894). Thus, while recoverable “costs” can include fees of officers of the court, “costs” is not necessarily limited to that element of recovery. “The term ‘costs,’ as applied to proceedings in a Court of Justice, has, in the acceptation of the profession, and by the practice of all Courts in Georgia, a well understood meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the Court in the progress of the cause.” (Emphasis supplied.) Davis v. State, 33 Ga. 531, 533 (1) (1863).

Bailiffs are officers of the court. There is, “fixed by statute, [provision for the] compensation for services rendered by [bailiffs] in the progress of the cause.” Davis v. State, supra at 533 (1). See OCGA § [414]*41415-12-7 (1). See also OCGA § 15-12-6 with regard to fees of special criminal bailiffs which is not applicable in this case. Compare Peters v. State, 9 Ga. 109 (1850), holding that there is no specific statutory authority for a sheriff to charge railroad fare or to charge for guarding the jail (see OCGA § 15-16-21 (c)) and that, therefore, fees for such services are not recoverable “costs”; Walton County v. Dean, 23 Ga. App. 97 (97 SE 561) (1918). Accordingly, regardless of whether the compensation of bailiffs is ultimately considered to be a “cost” accruing in the trial court or a “cost” accruing by an officer of the court, it is clear that such compensation may be a recoverable element of “costs” as against a convicted criminal defendant pursuant to OCGA § 17-11-1.

In this case, a sworn affidavit was filed on behalf of the State, indicating that two bailiffs had served in appellant’s trial, for which services a combined total compensation of $100 had accrued as “costs.” Compare Peters v. State, supra, wherein a charge submitted for “other expenses” was held to be too indefinite; Holloway v. State, 178 Ga. App. 141, 142 (3) (342 SE2d 363) (1986). Appellant made no attempt to show that two bailiffs had not served in her trial or that the total amount of $100 assessed as compensation for their services was excessive under OCGA § 15-12-7 (1). Her sole contention was that the State was not authorized to recover as “costs” pursuant to OCGA § 17-11-1 such compensation as had accrued to bailiffs under OCGA § 15-12-7 (1). That contention is without merit. There being nothing to contradict the sworn affidavit that the sum of $100 for two bailiffs was the proper amount assessable against appellant as “costs” pursuant to OCGA § 17-11-1, the trial court did not err in entering judgment against appellant in that amount.

2. As indicated, although witnesses are not officers of the court, the “costs” attributable to them are nevertheless recoverable pursuant to OCGA § 17-11-1, and appellant concedes this. See OCGA § 17-11-2; Brown v. State, supra; State v. Everett, supra. Compare Peters v. State, supra, and Walton County v. Dean, supra, both of which discuss the recoverability of the fees of court officers and not the recoverability of witness fees by a court officer. The $63 assessed against appellant as the “costs” of witnesses was based upon the affidavits filed by two witnesses in the case. One affidavit purported to be that of a lay witness and sought $14. The other affidavit purported to be that of a police officer and sought $49. With regard to the sum of $14 in “costs” assessed against appellant for the lay witness, the State concedes that the correct amount is $10 pursuant to OCGA § 24-10-24. Since appellant concedes that the authorized fee of a witness would be recoverable against her and since the State concedes that the authorized fee of the lay witness was $10 rather than $14, the trial court is hereby directed to write off $4 from the judgment.

[415]*415With regard to the affidavit of the police officer, the State concedes that witness fees to on-duty officers would not be authorized. However, the State relies upon OCGA § 24-10-27 (a), which provides, in relevant part, that certain law enforcement officers who are subpoenaed to attend a criminal proceeding “as a witness on behalf of the state during any hours except the regular duty hours to which the officer is assigned, shall be paid for such attendance at a rate fixed by the court, but not less than the per diem paid grand jurors in the preceding term of the superior court of such county or $20.00 per diem, whichever is greater. The claim for the witness fees shall be endorsed on the subpoena showing the dates of attendance and stating that attendance was required during the hours other than the regular duty hours to which the claimant was assigned. The claimant shall verify this statement.

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Bluebook (online)
364 S.E.2d 304, 185 Ga. App. 413, 1987 Ga. App. LEXIS 2513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walden-v-state-gactapp-1987.