Costs in a criminal case.

            In People v Dilworth, 291 Mich App 399 (2011) the Court of Appeals remanded to the trial court to set forth the basis for the costs assessed against the defendant.  A trial court must have statutory authority to order a criminal defendant to pay costs. People v Lloyd, 284 Mich App 703, 707 (2009).  In Dilworth neither of the statutes that defendant was convicted of violating provided any such authority, but the Legislature has the “authority to enact a general cost provision . . . .” Id. at 709 n 3.

There are several statutes under which trial courts may impose costs. MCL 771.3 authorizes a trial court to order a defendant to pay costs as a condition of probation; specifically, it authorizes the assessment of costs “incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” (Emphasis added.) See People v Brown, 279 Mich App 116, 138-139 (2008). Under MCL 769.1k(1)(b)(iii), a trial court may order the defendant to pay “[t]he expenses of providing legal assistance to the defendant.” And under MCL 769.34(6), a trial court may order costs as part of the sentence.

Because the Legislature has set forth specific circumstances under which trial courts may impose costs, a trial court generally has the discretionary authority to order a criminal defendant to pay the costs of prosecution.  When authorized, the costs of prosecution imposed “must bear some reasonable relation to the expenses actually incurred in the prosecution.” People v Wallace, 245 Mich 310, 314 (1929). However, those costs may not include “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.” People v Teasdale, 335 Mich 1, 6 (1952).

In Dilworth the prosecutor offered to provide the trial court with details of the expenses that were claimed to justify the $1,235 in costs, but that information was never placed into the record. From the transcript of the proceedings that defendant may not have been afforded the opportunity to challenge those costs, and the Court of Appeals could not tell whether the costs were imposed on the basis of appropriate charges, such as expert witness fees, Brown, 279 Mich App at 139, or impermissible charges, such as the assistant prosecutor’s wages, which were set by a board of supervisors pursuant to a statute and independent of any particular defendant’s case, see MCL 49.34.

The Court of Appeals therefore vacated the trial court’s order imposing the costs of prosecution, and remanded the matter to the trial court to make a record of what the costs were, determine whether ordering defendant to pay them was permissible, and, if appropriate, impose or deny them.