Opinion
Nos. 29002-2-II, 29192-4-II (Consolidated).
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 98-1-04060-4. Judgment or order under review. Date filed: 05/24/2002.
Counsel for Appellant(s), Spencer Robert Owens (Appearing Pro Se), 1512 Walters Road South, Tacoma, WA 98465.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Ronald La Mar Williams, Pierce Co Pros Ofc, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
After we reversed Spencer Owens's convictions and vacated the accompanying restitution order, Owens moved in the trial court for an award of attorney fees. The trial court denied the motion, vacated the restitution order, and ordered the clerk's office to refund the restitution Owens had already paid. Later, when it learned that the clerk's office no longer had Owens's money, the court modified the order by deleting the refund order. Owens appeals both the denial of attorney fees and the order modifying the order vacating restitution. We find no error and, thus, affirm.
FACTS
Spencer Owens appealed his 1999 convictions for burglary and assault. We held that Owens's speedy trial rights (CrR 3.3) had been violated and reversed the convictions, vacated the restitution order, and dismissed the charges. Owens then asked the trial court for an order granting him attorney fees as the prevailing party and for an order refunding the restitution payments he had already made. He submitted a bill from his trial attorney for over $6,000.
The trial court denied Owens's request for attorney fees because we had not awarded fees and Owens had cited no authority for such an award. The court rejected Owens's claim that denying him attorney fees violated the Eighth Amendment's cruel and unusual punishment prohibition; it reasoned that the lack of an available courtroom caused the delay and this was not a punishment.
The trial court did grant Owens's request to order the clerk's office to refund restitution that Owens had paid. No one appeared to represent the clerk's office in opposing the motion. But when it learned of the order, the clerk's office moved for reconsideration because it no longer had Owens's restitution money; it had sent the money to the victims. And the clerk's office had no fund from which it could pay what it characterized as Owens's claim for damages. Instead, it suggested that Owens file a claim with the county risk management office, which did have a fund to cover such claims.
The trial court modified the earlier order, removing the order to the clerk's office to refund the money; the modified order, however, reserved Owens's right to otherwise seek reimbursement. Owens appeals the modified order and the denial of his request for attorney fees.
ANALYSIS I. Attorney Fees
Owens challenges the trial court's refusal to grant him attorney fees. He claims that he is entitled to fees under CrR 7.8, several sections of the Washington Constitution, the Eighth Amendment of the U.S. Constitution, and several statutes. He argues that the State acted in bad faith, and challenges the trial court's refusal to award defense witness fees while authorizing State witness fees. The State contends, and the trial court agreed, that Owens provided no legal basis for an award of attorney fees.
Generally, attorney fees are available only if they are authorized by a private agreement, statute, or a recognized ground of equity. State v. Keeney, 112 Wn.2d 140, 142, 769 P.2d 295 (1989). Statutes allow a fees award in criminal cases only where the defendant acted in self-defense (RCW 9A.16.110; State v. Lee, 96 Wn. App. 336, 979 P.2d 458 (1999)), or where the complaint against the defendant was frivolous or malicious. RCW 10.46.210; State v. Sizemore, 48 Wn. App. 835, 839, 741 P.2d 572 (1987). Owens prevailed because of a procedural defect in the State's case, not because a jury found that he acted in self-defense. And the one-day delay in bringing the case to trial did not demonstrate frivolous or malicious action; there simply were no courtrooms available.
Courts may award costs from the State to successful defendants on appeal, but Owens does not request costs on appeal. RAP 14.2; Sizemore, 48 Wn. App. at 839. And 'costs' does not include attorney fees. Keeney, 112 Wn.2d at 142; State v. Martinez, 78 Wn. App. 870, 884, 899 P.2d 1302 (1995). In his reply brief, Owens claims that the trial court granted witness fees to the State but it refused to pay the defense witnesses. But while the materials he provides to support this argument are attached to his brief, they do not appear in the appellate record, RAP 9.1; therefore we cannot consider them. Moreover, the appended materials do not explain why defense witnesses' costs were denied and whether Owens paid those costs or whether the witnesses just did not receive payment. Thus, the record is inadequate for us to consider this argument.
Owens cites State ex rel. Hamilton v. Ayer, 194 Wn. 165, 77 P.2d 610 (1938), for the proposition that 'costs' and 'fees' are synonymous. But that case discussed the fact that 'costs' include filing fees, not attorney fees. Hamilton, 194 Wash. at 167-68.
Owens also relies on CrR 7.8 in support of his attorney fees claim. CrR 7.8 concerns relief from judgment or an order. Nothing in the rule supports or even mentions an award of attorney fees. CrR 7.8; see also 4A Karl B. Teglund, Wash. Practice, Rules Practice at 474-83 (6 Ed. 2002) (discussing rule; no mention of attorney fees).
And finally, Owens claims that he had an equitable right to attorney fees because the State acted in bad faith and because the case involved constitutional issues. In civil cases, four equitable bases may justify an attorney fees award: 'bad faith conduct of the losing party, preservation of a common fund, protection of constitutional principles, and private attorney general actions.' Miotke v. City of Spokane, 101 Wn.2d 307, 338, 678 P.2d 803 (1984). No criminal cases cite Miotke, and it is unclear whether these grounds apply in criminal cases.
Owens contends that the State acted in bad faith. But he does not explain what the State did that might show bad faith. The delay in bringing his case to trial was due to courtroom unavailability, rather than any bad faith by the State. If Owens instead means to challenge the State's action on appeal, this is not relevant to whether the trial court should have awarded him attorney fees.
Owens also contends that the constitutional underpinnings of the speedy trial rule support an equitable award for attorney fees. But Miotke explains that this basis is narrowly construed and applies only when a party brings a successful suit challenging the expenditure of public funds made because of obviously unconstitutional legislative or administrative actions. Miotke, 101 Wn.2d at 340. Owens's claim does not fit within these narrow parameters.
Because the trial court had no grounds to award Owens attorney fees, it did not err in denying them.
II. Restitution
Owens next challenges the trial court's refusal to order the clerk's office to refund $166.15 in restitution payments he had already paid. He also contends that the State's motion to reconsider the trial court's original order for the clerk's office to refund the restitution payments was untimely.
The trial court originally ordered the clerk's office to refund Owens's restitution payments. But when the clerk's office moved for reconsideration, the court discovered that the clerk's office no longer had the money; it had forwarded the payments to the victims. Once the court fully understood the issue, it concluded that Owens was most likely to get a refund by filing a claim with the county risk management office. It suggested that Owens file that claim; then it modified the order, removing the order to the clerk's office to refund the money.
The clerk's office moved for reconsideration less than two months after the court signed the original order. CrR 7.8(b) allows the State to move for reconsideration within one year if the order was obtained by mistake or if there is newly discovered evidence. The State could also move for reconsideration 'within a reasonable time' for '{a}ny other reason justifying relief from the operation of the judgment.' CrR 7.8(b). All three reasons apply here. The clerk's office was not represented when the trial court entered its original order for the clerk's office to refund the payments. The trial court did not know until the State moved for reconsideration that the clerk's office no longer had the money. And less than one year had passed since the original order. The State's motion was timely.
The court's final restitution order reads 'the Restitution Order entered in this matter is vacated pursuant to the ruling of the Court of Appeals.' Clerk's Papers (CP) (Sept. 24, 2002) at 58. 'Nothing in this Order limits Mr. Owen's {sic} rights to seek reimbursement for restitution payments made.' CP (Sept. 24, 2002) at 67. Our ruling in Owens's original appeal from his trial held, 'We grant Owens' PRP, reverse his convictions, vacate the restitution order, and dismiss the charges against him with prejudice.' CP (July 24, 2002) at 30. The trial court's order accurately reflects this ruling. We conclude that the trial court did not err in vacating the restitution order and allowing Owens to seek reimbursement from the county risk management office.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and HUNT, C.J., concur.